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CONTENTS 


THE  ECONOMIC  NECESSITY  FOR  THE   PENNSYLVANIA  RAILROAD 
TUNNEL  EXTENSION  INTO  NEW  YORK  CITY 

A.  J.   County. 

THE  POOLING  OF  FREIGHT  CARS  •  ^ 

J.   R.  Cavanagh. 

THE  ELECTRIFICATION  OF  AMERICAN   RAILROADS  a 

Thomas  Conway,  Jr. 

PUBLIC  REGULATION  OF  STREET  RAILWAY  TRANSPORTATION    .    31 

Emory    R.   Johnson. 

RATE    CONTROL     UNDER    THE     AMENDED      INTERSTATE     COM- 
MERCE ACT 48 

Harrison   Standish   Smai.lev. 

PRUSSIAN  RAILWAY  ADMINISTRATION  (>^ 

Ernest  S.  Bradford. 

PRUSSIAN  RAILWAY  RATE-MAKING  AND  ITS  RESULTS  70 

G.     G.     HUEBNER. 

AN     ARGUMENT    AGAINST     GOVERNMENT     RAILROADS     IN     THE 

UNITED  STATES "^ 

William  Allmand   Robertson. 

SHOULD    PUBLIC     FRANCHISES    BE     TREATED     AS     CORPORATE 

PROPERTY '  °8 

Arthur  W.  Spencer. 


PORT  ADMINISTRATION  AND  HARBOR  FACILITIES— A  Symposium, 


'  '3 


%^  Ampriran  Arabptny  of  Politiral  anb  i^orlal  i^rtettrr 

1907 


35?^ 


V 


THE  ECONOMIC  NECESSITY  FOR  THE  PENNSYLVANIA 

RAILROAD  TUNNEL  EXTENSION  INTO  NEW 

YORK  CITY^ 


By  Mr.  A.  J.  County, 

Assistant  to  Third  Vice-President,  Pennsylvania  Railroad  Company. 


Upon  your  insistent  invitation,  it  is  my  purpose  to  give  an  intro- 
ductory address  on  the  subject  of  "The  Pennsylvania  Railroad 
Tunnel  Extension  into  New  York  City,"  and  the  reasons  which  led 
to  its  construction.  I  am  not  authorized  to  speak  for  the  manage- 
ment, but  give  YOU  my  personal  views,  and  if  I  cause  you  to  more 
fully  appreciate  this  undertaking,  and  the  foresight,  courage  and 
energy  of  the  men  who  planned  it  and  the  men  who  are  constructing 
it,  I  believe  I  will  have  conformed  to  the  unwritten  law  of  the 
University  as  practiced  in  the  Wharton  School,  "make  the  boys 
think." 

It  is  the  experience  of  transportation  corporations  as  truly  as 
of  individuals  that  a  selfish  and  niggardly  policy  brings  ruin,  and 
that  permanent  development  can  be  secured,  and  steady  and  reason- 
able profits  realized,  only  by  exercising  forethought,  making  judi- 
cious expenditures  for  the  betterment  of  ])ublic  transportation  facili- 
ties, and  providing  for  future  expansion. 

The  Pennsylvania  Railroad  Company  apparently  followed  a 
broad  policy  in  studying  the  situation  in  New  York  City,  and  in 
undertaking  the  responsibility  of  pioneer  in  tunneling,  for  long  dis- 
tance and  suburban  railroad  trafiic.  the  North  River,  which  separates 
New  Jersey  from  that  part  of  New  York  City  known  as  the  Borough 
of  Manhattan,  and  the  East  River,  which  separates  the  latter  bor- 
ough from  the  Borough  of  Brooklyn  and  the  Borough  of  Queens 
on  Long  Island. 

Let  us  try  to  discover  what  must  have  confronted  its  manage- 
ment in  this  studv.  The  lines  of  the  Pennsylvania  Railroad  Com- 
pany have  terminated  on  the  west  bank  of  the  Hudson  River  since 
1871,  when  it  leased  the  United  New  Jersey  Railroad  and  Canal 

^An    address    before    the    Wharton    School    Association,    University    of    Pennsyl- 
Tanla,  February   13,   1907. 

(245) 


241737 


2  The  Annals  of  the  American  Academy 

Company,  and  the  same  barrier  of  the  North  River  hes  between 
them  and  the  commercial  and  financial  metropolis  of  the  country, 
hampering  the  development  and  movement  of  traffic. 

Men  have,  since  1871,  slightly  bettered  their  control  over 
nature,  but  only  last  month  passengers  in  crossing  the  Hudson 
River,  from  Jersey  City  to  Twenty-third  Street,  New  York,  usually 
a  run  of  about  fifteen  minutes,  spent  between  fifty  and  sixty  minutes 
in  fog  and  ice.  The  delay  was,  of  course,  proportionately  large  to 
other  points,  though  the  ferry  boats  are  of  the  fastest  and  most 
powerful  type. 

When  the  journey  has  been  accomplished,  the  people  are  landed 
only  on  the  fringe  of  New  York  City,  in  the  Borough  of  Manhattan, 
where  the  cross-town  streets  are  narrow,  and  the  street  paralleling 
the  wharves  is  filled  with  drays  and  heavy  wagons,  seriously  im- 
peding the  movement  of  over  300,000  persons  every  day. 

Again,  visit  Brooklyn  Bridge,  or  any  one  of  the  many  ferries 
of  the  East  River  on  any  business  day,  morning  or  evening,  and  see 
the  discomfort  and  delay  of  travel  experienced  by  the  surging  masses 
to  and  from  the  Borough  of  Manhattan  because  nature  has  inter- 
posed another  barrier  called  the  East  River,  and  it  is  responsible 
for  this  congestion  and  for  the  comparatively  isolated  condition  of 
the  residents  of  Brooklyn,  to  say  nothing  of  those  residing  in  other 
parts  of  Long  Island. 

In  view  of  the  long  deference  of  mankind  to  these  great  rivers, 
it  may  well  be  asked,  is  this  traffic  growing,  or  is  its  growth  so  slow, 
or  unprofitable,  as  to  warrant  no  other  method  of  transportation 
being  used  than  ferries,  and  will  any  progressive  railroad  company 
with  lines  terminating  in  New  Jersey,  be  content  to  utilize  prac- 
tically the  same  facilities  for  entering  and  leaving  New  York  City 
as  existed  over  sixty  years  ago?  In  answer  to  the  first  question,  the 
traffic  growth  is  marvelous,  as  a  recital  of  the  facts  will  evidence; 
the  action  of  The  Pennsylvania  Railroad  Company  is  the  best  answer 
to  the  second  query. 

An  examination  of  the  situation  shows  that  in  the  Borough  of 
Manhattan,  New  York  City,  the  density  of  population  is  about  eight 
times  as  great  as  the  average  density  of  the  six  other  largest  cities 
of  the  country.  The  side  barriers  of  the  East  and  North  Rivers, 
and  the  difficulty  of  movement  between  points  in  such  a  small  and 
crowded  area,  mav,  however,  be  summed  up  in  the  experience  that 

(246) 


Peiuisyk'ania  Railroad  Tunnel  3 

until  within  the  past  year  it  took  the  best  part  of  an  hour  to  arrive 
at  a  residential  section  of  the  city,  and  for  out-of-town  places  an 
hour  is  not  an  unusual  time  from  the  place  of  business  to  the  place 
of  residence,  and  generally  under  the  most  crowded  conditions. 
Because  of  these  barriers,  and  the  unfavorable  climatic  conditions 
of  at  least  six  months  in  the  year,  the  Borough  of  Manhattan, 
although  crowded  and  expensive,  is  considered  the  most  desirable 
place  for  residence,  while  the  suburban  section  within  the  limits 
of  the  City  of  Greater  New  York,  in  the  Boroughs  of  Brooklyn  and 
Queens  jointly,  have  not  even  the  same  density  of  population  found 
in  other  cities.  These  unfavorable  conditions  have  not,  and  doubt- 
less will  not,  stop  its  growth,  for  the  population  included  within  a 
circle  of  nineteen  miles  inland  radius  from  the  City  Hall,  Manhattan, 
was,  in  1890,  three  million  three  hundred  and  twenty-six  thousand 
nine  hundred  and  ninety-eight ;  in  1900.  four  million  six  hundred 
and  twelve  thousand  one  hundred  and  fifty-three ;  in  1905,  five 
million  four  hundred  and  four  thousand  six  hundred  and  thirty- 
eight.    The  increase  in  ten  years  was  thirty-eight  per  cent. 

In  1913  the  population  of  this  metropolitan  territory  will,  at 
this  rate,  be  at  least  six  millions,  and  in  1920  will  be  well  over  eight 
millions,  without  considering  the  many  schemes  of  improved  trans- 
portation now  under  way. 

Let  me  here  illustrate  the  possibility  for  growth  in  the  Boroughs 
of  Brooklyn  and  Queens,  compared  with  the  Borough  of  Man- 
hattan, and  with  the  following  cities: 

Area,  Density  per 

Popwlation.  Square  Mile-.  Square  Mile. 

Manhattan     Borough     2,174,335  21.93  99.148 

Brooklyn    Borough    1,404,569  77.62  18,097 

Queens   Borough    209,686  129.50  1,618 

Boston     607.340  42.66  14.237 

Chicago    2.050,000  190.5  10,761 

St.  Louis  750,000  61.5  12,195 

Philadelphia     1.500.000  129.5  11.582 

Greater    Pittshurgh    450,000  37-25  12.080 

Baltimore    560.000  31.5  17777 

London,  England   4,542.725  118.00  38,498 

It  is  impossible  to  judge  the  growth  of  a  city  by  the  increase 
of  its  transportation  facilities  alone.  It  is  a  well  known  fact  that 
in  the   City  of  New   York   the   various  transportation   companies 

(247) 


4  The  Annals  of  the  American  Academy 

Dperating  in  and  near  that  city  have  been  unable  to  increase  their 
facihties  for  travel  in  proportion  to  the  number  of  passengers  or 
tonnage  carried,  but  there  has  been  a  notable  response  to  every  addi- 
tional avenue  of  transportation  and  commerce. 

In  1897,  four  hundred  and  ninety  million  one  hundred  and 
fifty-two  thousand  seven  hundred  and  ninety  passengers  were  car- 
ried on  the  elevated  and  surface  lines  in  the  Borough  of  Man- 
hattan ;  in  1906,  the  elevated,  subway  and  surface  lines  carried  one 
billion  seven  million  one  hundred  and  sixty-one  thousand  nine  hun- 
dred and  thirty-three  passengers,  a  gain  of  five  hundred  and  seven- 
teen million  nine  thousand  one  hundred  and  forty-three,  or  more 
than  the  entire  number  of  passengers  carried  in  the  year  1897.  A 
similar  enormous  increase  in  travel  has  occurred  across  the  East 
River.  About  fifty  years  ago  the  first  railroad  was  built  in  the 
southwestern  part  of  Brooklyn.  This  village  community  was  then 
about  two  hundred  years  old  and  had  a  population  of  between 
twenty-one  and  twenty-five  thousand.  Now  there  is  a  city  of 
seventy-seven  square  miles,  with  a  population  of  one  million  four 
hundred  thousand,  forming  a  borough  of  Greater  New  York  City. 

Between  that  borough  and  the  Borough  of  Manhattan  the 
traffic  crossing  the  East  River  in  1897  numbered  one  hundred  and 
forty-three  millions.  Of  these  persons  about  fifty  millions,  exclud- 
ing pedestrians,  were,  in  that  year,  carried  over  the  bridge. 

This  traffic  develops  with  great  rapidity,  for,  in  1906,  a  close 
estimate  shows  that  295,000,000  persons  were  carried  across  the 
East  River.  The  ferries  conveyed  about  100,000,000,  and  the  rail- 
ways on  the  Brooklyn  and  Williamsburg  Bridges  carried  195,000,- 
000,  and,  although  pedestrians  tend  to  make  the  congestion  greater, 
they  are  not  included  in  the  foregoing  figures. 

With  abundance  of  room  for  expansion,  and  the  provision  of 
adequate  transportation  facilities,  the  Borough  of  Brooklyn  must 
become  the  competitor  of  the  Borough  of  Manhattan  in  population 
and  wealth. 

Leaving  the  subject  of  intra-city  travel  to  consider  that  carried 
by  the  railroads  across  New  York  harbor,  we  find  that  the  railroads 
on  the  west  bank  of  the  North  River,  in  1896,  carried  nearly  fifty- 
nine  million  people ;  in  1890,  over  seventy-two  million ;  in  1896, 
ninety-four  million,  and  in  1906,  we  may  safely  estimate  the  figure 
to  be  one  hundred  and  fortv  million  people. 

(248) 


Pennsylvania  Railroad  Tunnel  5 

This  is  the  passenger  side  only,  but  how  are  the  necessaries  of 
these  people  provided  for,  and  how  do  the  commodities  from  the 
southern  and  western  states  reach  them?  The  freight  traffic  car- 
ried on  the  lines  terminating  in  New  Jersey  is,  of  course,  laid  on 
the  bosom  of  Mother  Nature  and  floated  across  New  York  harbor 
)n  the  East  and  North  Rivers,  and  I  would  say  that  at  least  eighty 
to  one  hundred  million  tons  from  the  railroads  are  so  carried  every 
year. 

Such  conditions  indicate  that  any  additional  transportation 
route  must  be  a  distinct  advantage  to  the  traveling  public,  and  to 
the  residents  of  New  York  City  and  Long  Island,  especially  if  it 
removed  the  inconvenience  and  delay  of  transfers  across  the  East 
or  North  River,  and  must  have  had  great  weight  in  prompting  the 
Pennsylvania  Railroad  Company  to  build  the  New  York  extension. 

It  must  be  remembered  that  the  problem  of  the  Pennsylvania 
Railroad  in  conveying  persons  and  property  directly  into  New  York 
City  is  not  merely  a  local  necessity,  but  is  largely  due  to  the  fact  that 
its  road  is  a  great  avenue  of  travel  to  and  from  the  west  and  the 
south  and  that  city,  which  is  the  metropolis  of  the  country  for  busi- 
ness and  pleasure.  This  responsibility  is  a  gradual  growth  since  its 
lease  of  the  United  New  Jersey  Railroad  and  Canal  Company  in 
1 87 1,  when  the  number  of  passengers  carried  was  slightly  over  seven 
million,  and  the  tons  of  freight  slightly  over  two  million,  whereas, 
during  the  past  year,  there  were  carried  on  the  United  Railroads 
of  New  Jersey  Division  twenty-three  million  passengers  and  thirty- 
one  million  tons  of  freight. 

In  this  period  ferry  boats  and  ferry  facilities  have  been 
enlarged,  but  not  at  the  same  rate  as  traffic,  except  possibly  the  cost 
of  the  boats  and  the  rents  of  the  municipal  piers. 

From  authentic  figures  published  in  1896,  the  Pennsylvania 
Railroad  carried  nearly  twenty-five  per  cent  of  the  passenger  traffic 
over  the  North  River,  and  out  of  the  one  hundred  and  forty  million 
passengers  now  carried,  it  is  safe  to  say  that  the  Pennsylvania  Rail- 
road must  move  yearly  in  its  ferry  boats  about  thirty-three  million 
people  in  and  out  of  New  York  City,  in  addition  to  vehicles  and 
commodities.  The  facilities  must  be  so  arranged  as  to  conveniently 
transport  them  in  comfort  and  good  order  during  the  rush  hours,  as 
well  as  the  hours  when  traffic  is  lighter,  and  in  the  winter  months, 
when  the  conditions  of  traffic  are  such  as  to  cause  considerable 

(249) 


6  The  Annals  of  the  American  Academy 

delay,  and  the  taking  of  extraordinary  measures  to  insure  the  safety 
of  passengers. 

Across  the  river  from  the  terminal  at  Jersey  City  stood  the 
great  metropolis  with  but  one  moderate  sized  railroad  station  in  its 
center,  and  its  citizens,  fully  conscious  of  the  isolation  of  the  city, 
were  anxious  to  remedy  it. 

The  Pennsylvania  Railroad  Company,  in  seeking  improved 
methods  of  transportation  to  and  from  New  York  City,  recognized 
the  fact  that,  trusting  solely  to  ferry  facilities,  it  would  fall  short 
of  what  it  believed  the  future  would  require  for  the  greater  dis- 
patch, comfort  'and  convenience  of  not  thirty-three  million  people 
carried  to  and  from  the  metropolis  each  year,  but  what,  inside  of 
twenty  years,  will  mean  fifty  million. 

The  company  when  considering  its  tunnel  scheme  also  had  in 
mind  the  isolation  of  Long  Island,  and  the  results  to  be  obtained  by 
bringing  it  into  touch  by  rail  with  the  rest  of  the  world,  and  accord- 
ingly acquired  a  controlling  interest  in  the  Long  Island  Railroad 
Company  by  the  purchase  of  a  majority  of  its  capital  stock.  This 
should  give  it  the  largest  part  of  the  long  distance  traffic,  both  pas- 
senger and  freight,  from  that  island. As  an  estimate  of  what  that 

may  be,  let  me  repeat  that  Brooklyn  alone  has  a  population  of  about 
one  million  four  hundred  thousand,  and  will,  of  course,  grow  enor- 
mously when  the  island  is  brought  into  direct  contact  by  tunnel  and 
improved  freight  routes  with  the  City  of  New  York  and  the  west 
and  south. 

The  traffic  on  the  United  Railroads  of  New  Jersey  Division  of 
the  Pennsylvania  Railroad  in  thirty-four  years  had  a  growth  of  203 
per  cent  in  passengers  and  1122  per  cent  in  tonnage.  I  will  state 
this  more  concretely  by  saying  that  since  1895  the  tonnage  mileage 
on  the  main  line  of  the  United  Railroads  of  New  Jersey  Division 
increased  104  per  cent,  and  the  passenger  mileage  increased  79  per 
cent.  Its  traffic  density  per  mile  of  road  is  now  15,715,246  ton  miles, 
and  5,210,804  passenger  miles. 

The  passenger  traffic  on  the  Long  Island  Railroad  also  grew, 
within  this  ten-year  period,  over  33  1-3  per  cent,  and  a  like  increase 
has  resulted  in  its  tonnage.  The  total  tonnage  of  the  United  Rail- 
roads of  New  Jersey  Division  and  the  Long  Island  Railroad  for 
the  past  year  was  thirty-three  million  seven  hundred  and  twenty- 
three  thousand  sixty-one  tons,  and  it  may  be  estimated  that  the  New 

(250) 


Pennsylvania  Railroad  Tunnel  7 

York  and  New  England  tonnage  to  be  handled  across  New  York 
harbor  for  the  Pennsylvania  Railroad  lines  is  in  the  neighborhood 
of  sixteen  million  tons  per  annum. 

The  situation,  therefore,  that  would  confront  the  company  in 
the  next  two  decades  was  one  requiring  instant  attention,  if  it  were 
to  be  squarely  met  on  a  remunerative  basis.  The  interests  of  the 
company,  as  well  as  the  demands  of  commerce,  required  liberal 
provision  on  the  Long  Island  and  New  Jersey  shores  for  the  freight 
traffic  of  the  entire  metropolitan  district,  and  the  carfiage  of  through 
freight  to  and  from  New  England  states,  as  well  as  the  passenger 
extension  into  New  York  City  and  the  establishment  of  a  centrally 
located  passenger  station,  through  which  inconvenience  and  delays 
would  be  avoided. 

Various  methods  of  accomplishing  this  result  had  at  different 
times  been  considered,  and  at  one  time  centered  on  a  bridge  for 
passenger  traffic.  On  account  of  the  great  cost  of  a  bridge,  and 
because  all  the  companies  whose  railroad  lines  terminated  on  the 
west  bank  of  the  North  River  would  not  unite  in  the  undertaking, 
the  bridge  was  eliminated  from  consideration  for  the  time  being. 
The  alternative  was  the  construction  of  a  tunnel  line ;  but  the  diffi- 
culties incident  to  the  operation  by  steam  of  a  tunnel  at  the  depth 
and  with  the  gradients  required  by  the  topographical  conditions, 
seemed  to  make  a  tunnel  almost,  if  not  quite,  impracticable. 

Meanwhile,  however,  the  successful  operation  of  steam  railroa<l 
trains  in  tunnels  in  other  parts  of  the  world  by  electric  power  indi- 
cated a  satisfactory  solution  of  the  problem  for  suburban  traffic. 

I  would  like  to  impress  upon  your  minds  that  this  undertaking 
is  not  an  experiment,  or  a  work  hastily  undertaken,  but  one  which 
was  chosen  as  the  best  solution  of  the  company's  difficulties.  It  is 
the  result  of  many  years  of  deliberate  thought  and  investigation  of 
railroad  terminals  and  tunnels  in  various  parts  of  the  world,  by 
engineers  of  experience  and  men  of  executive  training.  Its  prac- 
tical features  have  been  more  than  confirmed  by  the  amount  of  work 
so  far  completed,  and  to  which  I  will  make  further  reference. 

For  many  years  the  company  realized  that  the  project  was  not 
one  that  could  be  financed  singly,  but  necessity  eventually  became 
so  stern,  and  the  growth  of  the  company  so  great,  that  the  improve- 
ments in  engineering  methods  and  plans  for  tunnels  were  finally 
regarded  as  absolutely  certain  to  produce  satisfactory  results,  and 

(251) 


8  The  Annals  of  the  American  Academy 

such  as  to  justify  the  company  proceeding  alone  in  its  plans  for  the 
development  of  its  own  system  and  the  movement  of  its  traffic. 

The  tunnel  extension  has  a  great  advantage  over  the  proposed 
North  River  bridge,  in  that  it  provides  a  direct  connection  between 
the  lines  west  of  the  Hudson  River  and  the  Long  Island  Railroad. 
It  also  connects  with  the  proposed  New  York  Connecting  Railroad, 
and  through  it  with  the  New  York,  New  Haven  and  Hartford  Rail- 
road, furnishing  an  all-rail  route  between  the  Western,  Southern 
and  New  England  States. 

To  carry  this  tunnel  scheme  into  effect  required  the  formation 
of  two  companies,  one  in  New  Jersey  and  the  other  in  New  York, 
which  are  known  as  the  Pennsylvania,  New  Jersey  and  New  York 
Railroad  Company  and  the  Pennsylvania,  New  York  and  Long 
Island  Railroad  Company,  respectively. 

The  first  named  company  was  incorporated  on  February  13, 
1902,  in  the  State  of  New  Jersey,  and  is  empowered  to  build  a  rail- 
road from  a  point  of  connection  with  the  tracks  of  the  United  New 
Jersey  Railroad  and  Canal  Company,  near  Newark,  thence  to  and 
under  Weehawken  and  the  Hudson  River  to  a  point  on  the  boun- 
dary line  between  the  States  of  New  Jersey  and  New  York,  con- 
necting there  with  the  railroad  of  the  following  company,  organized 
under  the  laws  of  the  State  of  New  York. 

The  Pennsylvania,  New  York  and  Long  Island  Railroad  Com- 
pany was  incorporated  April  21,  1902,  under  the  laws  of  the  State 
of  New  York,  and  it  is  authorized  to  construct  and  operate  a  tunnel 
railroad  in  the  City  of  New  York,  to  be  connected  with  any  railroad 
within  the  State  of  New  York  or  any  adjoining  state,  and  thereby 
form  a  continuous  line  for  the  carriage  of  passengers  and  property 
between  points  within  and  points  without  the  said  city.  The  western 
terminus  thereof  is  under  the  waters  of  the  Hudson  River  on  the 
boundary  line  between  the  States  of  New  York  and  New  Jersey,  at 
points  of  connection  with  the  Pennsylvania,  New  Jersey  and  New 
York  Railroad,  opposite  West  Thirty-first  and  West  Thirtv -second 
Streets,  New  York  City.  The  eastern  terminus  of  said  railroad  is 
at  points  of  connection  with  the  Long  Island  Railroad,  in  the  Bor- 
ough of  Queens  in  the  City  of  New  York. 

Before  the  New  York  company  could  begin  constructing  its 
railroad,  it  was  necessary  to  obtain  a  certificate  from  the  Stat? 
Board  of  Railroad  Commissioners  that  such  extension  was  a  public 


Pennsylvania  Railroad  Tunnel  9 

convenience  and  necessity,  which  certificate  was  granted  November 
24,  1902, 

It  was  also  necessary  to  obtain  a  franchise  from  the  City  of 
New  York,  which  was  granted  by  the  Board  of  Rapid  Transit  Rail- 
road Commissioners  on  October  9,  1902,  accepted  by  the  railroad 
company  on  November  5th  of  the  same  year,  and  approved  by  the 
Board  of  Aldermen  on  December  16,  1902; 

The  consents  required  from  the  other  municipal  departments 
and  bodies  of  the  city  were  obtained  later. 

The  conditions  under  which  the  franchise  was  granted  were: 

That  the  tunnel  company  should  maintain  and  operate  the  rail- 
road in  perpetuity,  begin  the  construction  of  its  road  within  three 
months  after  obtaining  the  needful  municipal  and  other  consents, 
and  complete  its  construction  within  five  years  thereafter. 

That  the  tunnel  company  should  pay  the  city  a  compensation 
per  lineal  foot  for  the  tunnel  tracks,  and  a  further  compensation  for 
the  use,  for  station  i)urposes,  of  the  underground  portions  of  the 
streets,  other  than  Thirty-second,  which  was  vacated  and  sold  to 
the  company,  and  which  it  so  occupies.  Such  compensation  is  fixed 
for  the  first  period  of  twenty-five  years,  and  is  subject  to  readjust- 
ment at  the  end  of  each  like  i)eriod.  For  the  first  period  of  twenty- 
five  years  it  is  so  adjusted  that  the  tunnel  com])any  pays  double  the 
amount  per  annum  for  the  latter  fifteen  years  thereof  that  it  does 
for  the  first  ten,  and  on  this  basis  the  average  for  the  entire  period 
will  be  about  sixty-four  thousand  dollars  per  annum. 

Pursuant  to  the  terms  of  this  franchise,  the  company  is  under- 
taking the  construction  of  a  line,  starting  from  points  under  the 
Hudson  River,  on  the  line  between  the  States  of  New  York  and 
New  Jersey,  and  running  eastwardly  through  and  under  Man- 
hattan Borough,  New  York  City,  and  under  the  East  River  and 
Long  Island  City,  rising  to  the  surface  in  its  Sunnyside  Yard 
terminus  in  that  city.  The  terminal  station  between  Thirty-first  and 
Thirty-third  Streets,  in  New  York,  and  Seventh  and  Ninth  Ave- 
nues, and  extending  westwardly  to  Sixth  Avenue,  and  additional 
tracks  under  Thirty-first  and  Thirty-third  Streets,  necessary  for  the 
operation  of  the  railway  and  station,  are  also  being  constructed. 

The  importance  of  the  project,  and  the  engineering  questions 
to  be  solved  in  its  construction,  caused  the  company  to  create  a 
Board  of  Engineers,  eminent  in  their  profession,  to  supervise  the 

(253) 


10  The  Annals  of  the  American  Academy 

preparation  of  all  plans  and  have  general  direction  of  the  under- 
taking, reporting  to  the  executives.  The  work  was  then  divided  into 
three  construction  sections,  the  North  River  Division,  the  East  River 
Division  and  the  Meadows  Division,  and  consists  of  about  13.10 
miles  of  new  railroad,  the  part  in  the  open  embracing  about  7.66 
miles  and  in  tunnels  about  5.5  miles. 

The  principal  physical  features  of  the  work  are  elevated  tracks 
constructed  in  the  open  from  a  connection  with  the  New  York 
Division,  east  of  Newark,  across  the  Meadows  to  the  portals  of  the 
tunnels  at  Bergen  Hill,  and  a  double  track  tunnel  under  Bergen 
Hill,  West  Hoboken,  Weehawken,  becoming  two  single  track  iron 
tube  tunnels  as  they  pass  under  the  Hudson  River  into  New  York 
City  to  a  point  near  Tenth  Avenue.  When  the  tracks  emerge  from 
the  tunnels  at  that  point  they  begin  to  increase,  and  at  the  terminal 
station,  lying  between  Thirty-first  and  Thirty-third  Streets  and 
Seventh  and  Eighth  Avenues,  will  number  twenty-one. 

At  the  terminal  station  site  there  are  about  twenty-eight  acres 
enclosed  by  retaining  walls,  making  a  total  length  of  such  walls  of 
seventy-eight  hundred  feet  and  requiring  the  excavation  of  two 
million  five  hundred  thousand  cubic  yards.  There  will  be  about 
forty-five  thousand  tons  of  steel  required  for  the  terminal  station, 
and  such  station  will  have  ultimately  a  maximum  capacity  for  about 
fourteen  hundred  and  fifty  trains  per  day,  accommodating  about 
five  hundred  thousand  passengers  daily.  Within  the  station  area 
there  will  be  about  sixteen  miles  of  track. 

Easterly  from  Seventh  Avenue  the  terminal  tracks  finally  re- 
solve into  four  tracks  in  two  twin  tunnels  extending  under  Thirty - 
second  and  Thirty-third  Streets  to  the  East  River  shafts  in  Man- 
hattan. From  the  latter  point  four  single  track  iron  tube  tunnels 
extend  under  the  East  River  and  into  Long  Island,  and  the  lines 
reach  the  open  surface  at  the  entrance  to  the  Sunnyside  train  yard, 
where  connection  will  be  made  with  the  Long  Island  Railroad,  and 
later  with  the  New  York  Connecting  Railroad,  to  handle  traffic  to 
and  from  New  England,  as  well  as  Long  Island. 

The  company  has  been  negotiating  for  the  past  year  for  neces- 
sary changes  in  the  routes  of  streets  in  the  Sunnyside  Yard  District, 
on  Long  Island,  and  such  will  doubtless  be  made,  so  that  the  con- 
struction of  the  large  terminal  yard  may  begin  in  this  undeveloped 

(254) 


Pennsylvania  Railroad  Tunnel  ii 

region.  It  will,  with  its  approach  tracks,  cover  about  389  acres,  and 
have  a  capacity  for  about  1,500  cars. 

The  plans  of  the  company,  since  their  first  inception,  have  been 
materially  broadened,  as  the  general  recital  of  the  physical  features 
of  the  extension  indicates,  and  the  total  cost,  including  real  estate, 
will  probably  be  not  less  than  $90,000,000. 

It  will  be  well  to  bear  in  mind  that  the  tunnel  project  is  on  a 
much  larger  scale  than  the  existing  facilities,  and  indicates  further 
thought  for  the  care  and  dispatch  of  traffic.  Broadly  speaking,  it  is 
after  all  only  the  result  of  the  enormous  growth  of  the  traffic  of  the 
Penns\lvania  Railroad  for  over  thirty  years,  demanding  some  such 
provision  as  is  now  being  made  for  its  still  greater  expansion. 
Although  $90,000,000  seems  a  large  sum,  it  must  be  considered  that 
six  years  will  have  elapsed  between  the  first  and  the  last  expendi- 
tures for  the  work.  Therefore,  it  can  readily  be  seen  that  if  it  had 
been  deferred  for  another  decade  its  cost  would  have  been  almost 
prohibitive,  but  now  it  is  within  the  bounds  of  a  reasonable  outlay  for 
the  results  to  be  accomplished.  .Vs  proof  of  this,  consider  the  state- 
ment publicly  made  by  a  vice-president  of  the  New  York  Central  and 
Hudson  River  Railroad  Company,  that  his  company  required  $70,- 
000,000  for  the  improvement  and  reconstruction  of  its  station  and 
the  electrification  of  its  tracks  for  suburban  traffic.  It  must  be  re- 
membered that  the  New  York  Central  and  Hudson  River  Railroad 
Company  is  compelled  to  carry  on  its  large  work  of  improvement 
within  the  territory  where  its  tracks  are  at  present  located,  involving 
great  responsibility  because  the  traffic  nuist  continue  to  move, 
whereas,  the  Pennsylvania  Railroad  Company,  for  its  $90,000,000, 
makes  a  considerable  addition  to  its  system,  has  a  terminal  in  the 
central  part  of  New  York  City,  with  connection  to  Long  Island  and 
New  England,  and  has  a  clear  field  to  carry  on  its  work. 

By  the  time  the  real  estate  and  rights  of  way  had  been  acquired, 
the  management  had  its  plans  and  specifications  prepared  by  the 
board  of  engineers.  Contracts  were  then  advertised,  the  awards 
made  to  the  lowest  bidder,  and  the  active  work  of  construction  was 
undertaken. 

The  work  of  investigation  and  construction  has  been  steadily 
pursued,  until  to-day  it  displays  the  following  evidence : 

The  masonry  work  of  the  several  bridges  on  the  line  from  its 
connection  with  the  New  York  Division  near  Harrison  to  the  portals 

(255) 


12  The  Annals  of  the  American  Academy 

of  the  tunnels  at  Bergen  Hill  is  making  rapid  progress  towards 
completion. 

The  tunnels  under  Bergen  Hill  are  progressing  satisfactorily, 
and  the  excavation  has  been  made  and  iron  tubes  laid  for  the  two 
tunnels  under  the  North  River,  and  the  concrete  lining  is  now  being- 
placed.  The  excavation  of  the  east  shore  end  of  these  tunnels  is 
now  within  two  hundred  feet  of  the  terminal  site. 

The  excavation  at  the  terminal  site  of  the  estimated  two  million 
five  hundred  thousand  yards  of  material,  between  Seventh  and 
Eighth  Avenues  and  Thirty-first  and  Thirty-third  Streets,  is  almost 
completed,  and  a  large  part  of  the  foundations  for  the  building  and 
sub-surface  work  in  hand. 

Eastward  from  the  terminal  site  to  the  Manhattan  shafts,  con- 
siderably more  than  one-half  of  the  necessary  excavation  has  been 
completed,  and  rapid  progress  is  now  being  made  in  the  excavation 
and  construction  of  the  four  tubes  under  the  East  River  to  the  Long 
Island  shafts. 

About  seventy-five  per  cent  of  the  tunnels  east  of  that  shaft 
has  been  iron  lined,  while  the  excavation  is  nearing  completion.  I 
can  better  express  it  by  saying  that,  with  the  exception  of  a  short 
distance  in  and  near  the  terminal,  it  is  possible  to  walk  underground 
from  Bergen  Hill,  N.  J.,  to  and  under  the  East  River. 

The  tunnel  extension  cannot  be  considered  complete  without 
the  following  extensive  improvements  for  the  development  of  Long 
Island  and  New  England  traffic,  which  are  being  undertaken  in 
connection  therewith : 

1.  The  establishment  of  the  eastern  terminus  to  be  called  "Sun- 
nyside  Yard,"  between  Thompson  and  Jackson  Avenues,  in  Queens 
Borough,  which  I  have  before  mentioned.  This  yard  is  necessary, 
not  only  for  the  efificient  operation  of  the  tunnel  extension  in  Man- 
hattan, but  also  for  the  proper  care  of  the  additional  traffic  which 
will  result  from  the  said  extension,  and  its  interchange  with  the 
Long  Island  Railroad  and  New  York,  New  Haven  and  Hartford 
lines. 

2.  The  elimination  of  grade  crossing  and  the  electrification  of 
the  Long  Island  Railroad  within  the  city  limits.  These  changes 
improve  the  lines  from  Flatbush  Avenue  station  out  to  Brooklyn 
Borough  line,  and  from  Long  Island  City  station  to  Jamaica,  and 
from  that  station  by  the  Manhattan  Beach  line  through  East  New 

(256) 


Pennsylvania  Railroad  Tunnel  13 

York  around  to  the  Bay  Ridge  Terminal,  on  the  southern  shore  of 
Long  Island. 

3.  The  Pennsylvania  freight  terminal  yard  and  piers  at  Green- 
ville, N.  J.,  connecting  by  the  proposed  straight  and  relatively  short 
ferry  across  the  upper  bay  with  the  Bay  Ridge  terminal  of  the  Long 
Island  Railroad. 

4.  The  enlargement  of  the  facilities  for  handling  freight  in  th'^ 
Boroughs  of  Brooklyn  and  Queens,  by  the  establishment  of  many 
yards,  which  are  necessitated  by  putting  these  boroughs  in  touch 
with  the  rest  of  the  country  by  rail  and  for  their  local  requirements. 

5.  The  completion  of  what  is  known  as  the  "Atlantic  Avenue 
Improvement,"  in  Brooklyn,  requires  the  removal  of  steam  railroad 
tracks  from  the  surface  of  that  avenue,  at  the  joint  expense  of  the 
railroad  company  and  the  city,  and  a  large  and  very  expensive  im- 
provement, at  the  sole  cost  of  the  railroad  company,  of  the  passenger 
and  freight  stations  at  Flatbush  Avenue.  This  point  will  in  the 
future  probably  be  the  most  important  distribution  point  for  pas- 
sengers in  Brooklyn,  the  improved  station  and  terminal  being  de- 
signed to  occupy  sixty-one  lots.  When  the  New  York  Connecting 
Railroad  is  finished,  residents  of  Brooklyn  and  Queens  will  travel 
by  that  route  to  New  England  and  the  north  and  east,  and  by  way 
of  the  Pennsylvania  terminal  in  New  York  City  to  the  west  and 
south. 

6.  The  New  York  Connecting  Railroad  is  to  be  twelve  miles 
long,  to  run  through  a  part  of  Queens  Borough,  then  by  a  bridge 
across  the  East  River  at  Ward's  and  Randall's  Islands,  and  will  be 
the  connecting  link  for  passenger  and  freight  traffic  to  the  territory 
mentioned  in  the  previous  paragraph.  It  will  abolish  the  largest 
part  of  the  floatage  in  New  York  harbor  now  carried  on  by  the 
Pennsylvania  Railroad  Company  by  delivering  and  receiving  freight 
at  Bay  Ridge,  L.  I.,  and  will  carry  all  the  passenger  traffic  through 
the  Pennsylvania  Railroad  tunnels. 

7.  Construction  of  the  Glendale  cut-off  between  the  main  line, 
Montauk  Division  and  Rockaway  Beach  Division  of  the  Long  Is- 
land Railroad.  This  is  necessary  for  the  improved  passenger  service 
and  to  give  direct  connection  with  the  Pennsylvania  tunnels  through 
New  York  City. 

8.  New  piers  and  docks  on  Newtown  Creek  at  its  confluence 

(257) 


14  The  Annals  of  the  American  Academy 

with  the  East  River  for  traffic  to  and  from  the  Long  Island  Rail- 
road. 

9.  Electrification  of  the  United  Railroads  of  New  Jersey  Di- 
vision from  Newark  into  Jersey  City,  for  local  passenger  traffic. 

In  all  of  these  plans  the  residents  of  the  City  of  Greater  New 
York  and  its  public  bodies  are  materially  interested,  and  it  is  largely 
due  to  this  public  sentiment  that  the  company  has  been  successful 
in  having  them  approved. 

The  accompanying  map  will  enable  you  to  clearly  comprehend 
the  vast  improvements  contemplated  and  their  tremendous  possi- 
bilities to  the  Pennsylvania  Railroad  system,  the  City  of  Greater 
New  York,  and,  in  fact,  the  entire  country. 

Summing  up,  the  Pennsylvania  Railroad  Company's  New  York 
Tunnel  Extension  is  a  line  of  railroad  from  Newark,  N.  J.,  to  Port 
Morris,  N.  Y.,  through  the  Borough  of  Manhattan  and  Queens, 
having  for  its  principal  purposes : 

The  construction  of  a  large  passenger  terminal  centrally  located 
in  the  City  of  New  York ; 

Making  the  Long  Island  Railroad  an  integral  part  of  the 
system ; 

Affording  the  Boroughs  of  Brooklyn,  Queens  and  the  balance 
of  Long  Island  abundant  opportunity  for  development ;  and 

Binding  the  New  England  States  with  those  of  the  west  and 
south  by  means  of  the  New  York  Connecting  Railroad. 

The  reasons  for  its  construction  apparently  were: 

First — To  provide  for  the  future  by  enlarging  the  present 
facilities  for  freight  and  passenger  traffic,  because  of  the  continuous 
growth  in  passenger  and  freight  traffic,  and  to  accomplish  it  before 
the  cost  became  almost  prohibitive,  or  the  task  impossible,  because 
of  the  construction  of  other  underground  transportation  lines. 

Second — To  run  its  passenger  trains  into  a  central  location  in 
the  City  of  New  York,  instead  of  a  station  on  the  west  bank  of  the 
Hudson  River. 

Third — To  open  to  the  people  in  the  thickly  populated  Borough 
of  Manhattan  the  residential  sections  of  Long  Island,  and  to  offer 
to  Newark  and  other  populous  towns  in  New  Jersey  direct  and 
quick  access  to  the  resorts  on  Long  Island  beaches. 

(258) 


S    T  A   T    E    N 
S    L  A    N    D 


-^Pennsylvania  R.R 


2.  Qreenv( lie  Freie^yrt 
3  e^ef?.  Electrified  Li 
4.  New -town  Creek  Devc 
5).  New^brk  ConnecVinc 
G.  Glendale  cu-i-af-f  betv 
T    Terminal,  Sheepshea 


-^  Pennsvlvan/a  p.p.  Go's  New  York- Tunnel  Extension  and  Connections.  « 


I.      Sunoysic/e    VJar-c/. 

2.    Qceenv/ lie    FreigH-t  Term\nal. 

3    P'f^.R.  Electrified  Line,  NevvarV   ^o  Jersey  City. 

A-.   Newtown  Creek  Development -Bulkheads,  piers,  tracks. 

5    Newtbrk  Cannec-Ling  J3si/rx>ad. 

S.   Glenda)e  cu-t-crT-f  betiveen  Main  Line  <snd  l5bcKayvay<and  Mon-bauk  Divisions. 

7    Terminal,  Sheepshesci  8c»y, 


Pennsylvania  Railroad  Tunnel  15 

Fourth — To  provide  a  highway  for  all-rail  traffic  to  New 
England. 

Fifth — To  give  the  Boroughs  of  Brooklyn  and  Queens,  with 
their  population  of  over  1,500,000,  direct  railroad  connection  to  and 
from  the  New  England,  Southern  and  Western  States,  and  to  supply 
freight  facilities  with  similar  connections  in  these  boroughs,  thereby 
properly  serving  the  entire  area  of  Greater  New  York  through 
freight  stations,  suitably  located  to  develop  its  commercial  interests. 

Sixth — To  provide  additional  freight  facilities  and  shorten 
the  water  transportation  trip  for  the  New  England  traffic  across 
New  York  harbor  from  about  twelve  miles  to  three  and  four-tenths 
miles. 

Seventh — To  make  its  Long  Island  Railroad  investment  re- 
munerative within  a  comparatively  short  period. 

Eighth — To  obtain  a  proper  share  of  the  golden  future  by 
judicious  expenditures  in  a  territory  having  abundant  promise, 
whether  viewed  from  the  growth  of  traffic  in  the  past  or  the  outlook 
for  the  future. 


THE  POOLING  OF  FREIGHT  CARS 


By  J.  R.  Cavanagh, 

Superintendent   Car    Service,   Cleveland,   Cincinnati,    Chicago   and   St.   Louis 
Railway  Company,  Indianapolis,  Ind. 


The  inability  of  many  of  the  railroads  of  the  country,  or  portions 
of  numerous  other  railroad  systems,  to  handle  promptly  the  freight 
offered  for  transportation  has  increased  the  importance  of  devising 
some  method  of  adding  to  the  efficiency  of  the  enormous  freight  car 
equipment  now  in  use  upon  American  railways.  There  is  no  topic 
in  railway  management  more  discussed  than  the  car  shortage  or  car 
surplus  question. 

This  is  a  comparatively  recent  problem  that  has  arisen  as  the 
result  primarily  of  the  enormous  increase  in  traffic  during  the  past 
seven  years,  and  secondarily  of  the  steady  development  of  through 
shipments  or  long-distance  traffic.  The  development  of  the  country, 
the  widely  distributed  population  and  industry,  and  the  growing 
unification  of  the  transportation  business  of  the  country  as  a  whole 
are  causing  the  form.er  method  of  interchanging  cars  to  become 
antiquated  and  practically  unworkable. 

Prior  to  1872  connecting  railway  companies  did  not  exchange 
freight  cars  regularly  except  in  the  case  of  cars  that  w-ere  assigned 
to  freight  lines  and  which  were  marked  and  known  as  "line  cars.'' 
The  payment  for  the  use  of  cars  that  were  interchanged  was  made 
by  junction  agents  at  the  rate  of  two  cents  per  loaded  mile  run.  In 
1872  this  charge  was  reduced  to  one  cent  per  mile  run.  loaded  or 
empty,  settlement  being  made  by  the  accounting  department  of  the 
company  borrowing  the  car  by  a  report  made  to  the  corresponding 
department  of  the  company  owning  the  car.  In  August.  1876,  the 
payment  per  mile  run  was  reduced  to  three-quarters  of  a  cent,  and 
later  a  further  reduction  to  three-fifths  of  a  cent  was  made,  the 
charge  in  each  case  being  for  the  entire  distance  traveled  by  the 
car,  whether  loaded  or  empty. 

This  system  of  payment  upon  the  basis  of  mileage  proved 
fairly  satisfactory  during  the  prosperous  years  preceding  1893.  Then 

(260) 


Pooling  of  Freight  Cars  VJ 

when  the  panic  came  which  was  followed  by  a  period  of  five  years 
of  business  depression,  the  railroads  of  the  country  were  troubled 
with  a  surplus  rather  than  with  a  shortage  of  equipment.  Many 
roads  were  glad  to  have  their  equipment  used  by  other  companies. 
During  the  period  from  1893  to  1899  there  was  comparatively  little 
increase  in  the  freight  car  equipment,  and  the  consequence  was  that 
when  business  became  active,  just  before  1900,  every  railroad  soon 
began  to  clamor  for  cars.  The  situation  which  began  to  develop  in 
1899-1900  has  grown  steadily  more  acute  year  by  year,  until  at  the 
present  time  every,  railroad  company  is  obliged  to  confess  itself 
unable  to  supply  the  shippers  promptly  and  adequately  with  a  suffi- 
cient number  of  cars. 

Various  efiforts  have  been  made  to  deal  with  this  steadily  in- 
creasing difficulty  and  perplexity.  As  a  result  of  an  agitation  in 
1901  the  railroads  of  the  United  States  on  the  ist  of  July,  1902, 
changed  the  basis  of  settlement  for  the  use  of  foreign  cars  from 
miles  run  to  a  per  diem  basis.  The  payment  agreed  upon  was 
twenty  cents  per  day.  the  owner  of  the  car  having  the  right  to 
demand  its  return  when  the  car  had  been  absent  from  its  lines  twenty 
days.  If  the  car  was  not  returned  within  ten  days  thereafter,  viz., 
thirty  days  from  the  time  it  left  the  line  of  the  owning  company,  the 
per  diem  charge  was  advanced  from  twenty  cents  to  one  dollar.  It 
was  hoped  that  this  change  in  the  payment  for  the  use  of  foreign 
cars  would  solve  the  question.  It  did,  indeed,  prove  to  be  much 
superior  to  the  mileage  basis  of  payment,  and  experience  has  shown 
that  time  is  a  better  standard  than  mileage  in  fixing  the  charges  for 
the  rental  of  cars. 

A  fundamental  defect  in  the  per  diem  penalty  plan  of  charging 
for  the  use  of  foreign  cars  is  becoming  evident :  it  has  had  the  effect 
of  pooling  cars  moving  in  the  direction  of  roads  receiving  large 
volumes  of  inbound  business,  and  of  taking  equipment  away  from 
the  lines  of  roads  having  a  large  outbound  traffic.  Thus,  for  in- 
stance, road  A.  might  deliver  i.ooo  cars  to  road  B.  in  a  month, 
while  durin.f^  the  same  time  road  B.  would  have  only  600  carloads 
of  freight  for  delivery  to  A.  If  under  these  conditions  B.  had  an 
unusual  demand  for  cars,  it  would  retain  the  400  cars  thus  received 
in  excess  of  those  given  it  and  use  the  same  to  carry  on  its  business 
with  other  companies,  viz.,  to  supply  its  own  equipment  needs.  The 
method  of  paving  for  the  use  of  foreign  cars  does  not  insure  a 

(261) 


l8  The  Annals  of  the  American  Academy 

prompt  return  to  road  A.  of  the  equipment  sent  out  by  it  in  excess 
of  the  equipment  received  in  the  transportation  of  traffic  coming  to 
it  from  connecting  hues.  Railroad  companies  that  are  large  orig- 
inators of  traffic  are  easily  denuded  of  equipment,  and  are  without 
the  power  under  the  present  rules  to  get  their  cars  back  within  a 
reasonable  time. 

As  the  demand  for  cars  has  increased,  as  storage  facilities  have 
become  inadequate  with  the  growth  of  traffic,  and  as  the  average 
number  of  miles  which  a  carload  of  freight  is  moved  has  grown 
greatly,  the  per  diem  of  twenty  cents  has  come  to  be  entirely 
inadequate.  This  fact  was  so  clearly  recognized  by  railroads  that 
on  the  1st  of  January,  1906,  the  per  diem  was  raised  to  twenty-five 
cents  per  car,  with  a  per  diem  penalty  of  seventy-five  cents  additional 
at  the  end  of  thirty  days.  This  increase  was  soon  shown  to  be  insuffi- 
cient, and  the  result  was  that  in  the  autumn  of  1906  a  number  of 
railroads  agreed  among  themselves  to  charge  each  other,  tempo- 
rarily, a  per  diem  of  fifty  cents,  without  the  penalty  feature.  The 
roads  which  did  not  become  parties  to  this  agreement  have  con- 
tinued to  charge  the  old  rates  of  twenty-five  cents  per  day,  increasing 
to  one  dollar  per  day  to  the  end  of  thirty  days. 

Even  the  per  diem  charge  of  fifty  cents  has  not  met  the  situa- 
tion. There  is  still  a  severe  car  shortage,  and  it  will  be  impossible 
for  the  railroads  to  secure  from  the  car  builders  a  sufficient  number 
of  cars  during  the  present  calendar  year  to  relieve  the  situation.  At 
the  close  of  January,  1907,  a  number  of  railroads  agreed  to  enter  a 
freight  car  pool,  provided  a  satisfactory  plan  for  regulating  such  a 
pool  could  be  worked  out.  Thus  far  no  practical  plan  has  yet  been 
presented.  Everybody  seems  to  recognize  that  the  per  diem  system 
of  payment  ought  to  be  changed,  but  the  problem  of  working  out  a 
car  pooling  arrangement  that  is  satisfactory  to  all  parties  in  interest 
has  thus  far  proven  impossible  of  solution. 

One  thing,  however,  is  certain :  the  rules  that  have  been  recom- 
mended providing  for  the  return  of  cars  as  per  marks  or  ownership 
are  impracticable,  for  the  reasons  that  every  restriction  placed  upon 
the  movement  of  a  car  reduces  its  availability,  increases  the  mileage 
which  it  travels  without  a  load,  and  adds  to  the  time  and  expense 
required  for  switching.  Some  plan  must  be  found  for  controlling 
the  movement  of  freight  cars  before  traffic  officials  can  hope  to 
discover  a  practical  solution  of  the  problem. 

(262) 


Pooling  of  freight  Cars  19 

In  order  to  deal  adequately  with  the  distribution  and  move- 
ment of  cars  a  system  must  be  established  that  will  be  in  accordance 
with  the  following  principles: 

1.  Equity  must  be  secured  alike  to  owner  and  user  of  the  car, 
viz.,  to  both  delivering  and  receiving  lines. 

2.  The  payment  must  reward  the  efficient  use  of  equipment  and 
adequately  penalize  its  inefficient  use. 

3.  The  reward  should  be  in  proportion  to  the  degree  of  merit, 
and  the  penalty  should  correspond  with  the  degree  of  the  offense. 

4.  The  system  of  control  should  minimize  operating  expenses 
as  far  as  possible,  and  should  provide  definitely  for  settlements  day 
by  day  or  week  by  week  between  the  delivering  and  receiving  lines. 

5.  No  unadjusted  discrepancies  between  car  owner  and  user 
should  be  permitted. 

6.  The  system  should  insure  to  each  road  the  full  use  of  its  own 
equipment,  or  of  cars  providing  an  equivalent  equipment. 

7.  The  system  should  provide  for  maximum  loads,  and  should 
minimize  as  far  as  possible  the  empty-haul  mileage. 

In  the  opinion  of  the  writer  these  principles  of  car  control  and 
distribution  can  be  carried  out  in  practice  only  by  a  system  of  pool- 
ing freight  cars  in  accordance  with  an  equitable  arrangement  that 
will  prevent  the  appropriation  by  any  one  or  more  lines  of  the  larger 
and  better  cars,  and  that  will  provide  for  a  daily  settlement  between 
delivering  and  receiving  lines.  This  system  would  minimize  the 
expenses  of  operation  and  maximize  the  efficiency  of  the  equipment. 
As  the  result  of  a  careful  study  of  the  subject  and  of  business  experi- 
ence, the  author  recommends  the  following  plan  for  the  organization 
and  management  of  a  freight  car  pool.  He  believes  that  it  solves 
every  element  of  the  problem,  and  that  its  adoption  by  the  railroads 
generally  in  the  United  States  would  enormously  increase  the  effi- 
ciency of  their  freight  equipment. 

Suggested  Plan. 

1.  An  inventory  to  be  taken  of  every  car  on  each  line,  home  and  foreign, 
at  i2.or  a.  m.,  date  of  beginning  of  plan. 

2.  A  statement  of  equipment  owned  at  12.01  a.  m.,  date  of  operation. 

3.  The  difference  between  ownership  and  actual  cars  on  hand  to  consti- 
tute a  debit  or  credit,  as  the  case  may  be. 

4.  Each  day  at  12.01  a.  m.,  a  report  to  be  rendered,  in  triplicate,  by  each 
agent,  of  cars  delivered  to  connecting  lines,  to  the  agent  of  such  line,  for  the 

(263) 


20  The  Annals  of  the  American  Academy 

twenty- four  hours  preceding;  such  reports  to  be  checked  and  verified  by 
both  agents  (or  preferably  by  a  joint  clerk)  one  copy  to  be  kept  by  the  receiv- 
ing agent,  two  copies  to  be  returned  to  the  delivering  agent,  one  for  his 
file  and  one  to  be  forwarded,  with  notations  thereon,  to  the  district  man- 
ager of  the  pool.  The  receiving  agent  to  be  required  to  take  an  impression 
copy  and   send  the  original   to   his  car  accountant. 

5.  In  case  of  omissions,  errors  or  discrepancy  in  statements,  such  dis- 
crepancies to  be  adjusted  within  twenty-four  hours,  the  delivering  line,  in  the 
meantime,  assuming  the  expense  of  car  hire  until  it  proves  delivery;  if  not 
adjusted  in  ninety-six  hours  then  the  inspector  of  the  pool  to  investigate, 
and  his  report  must  be  accepted  by  both  lines,  subject  to  appeal  to  the  dis- 
trict manager. 

In  all  cases  of  dispute,  when  finally  decided,  all  errors  and  omissions 
to  be  adjusted  on  current  interchange  report,  which  report  shall  show  dates, 
initials  and  car  numbers  "as  reported"  and  "as  should  have  been  reported," 
also  difference  "Dr."   or  "Cr." 

6.  In  cases  where  such  discrepancies  become  chronic,  the  pool  to  place 
a  joint  man  to  locate  the  responsibility;  the  expense  of  such  joint  man  to 
be  paid  by  the  road  at  fault. 

7.  The  balance  Dr.  or  Cr.  to  be  carried  forward  each  day ;  the  cars  deliv- 
ered the  current  day  added,  the  cars  received  deducted,  and  balance  Dr.  or 
Cr.  shown  and  certified  to.  Not  later  than  the  5th  of  each  month  a  sum- 
mary of  the  past  month  to  be  rendered  by  the  agent  of  the  delivering  line  to 
the  agent  of  the  receiving  line,  showing,  by  date,  the  daily  balances,  which 
must  be  certified  to  at  once. 

8.  The  Dr.  balance  to  be  paid  for  at  such  flat  rates  as  may  be  agreed 
upon,  or  may  be  based  on  some  sort  of  a  graduated  plan  about  as  follows : 

First  fifteen  days  at 25  cents  per  car  per  day. 

The  sixteenth  day  at  30 

The  seventeenth  day  at   35 

The   eighteenth    day    at    40 

The  nineteenth  day  at    45 

The  twentieth  day  at    50 

The  twenty-first  day  at  55 

The  twenty-second  day  at   60 

The  twenty-third  day  at    65 

The  twenty-fourth   day  at   70 

The  twenty-fifth  day  at   75 

The  twenty-sixth  day  at   80 

The  twenty-seventh   day   at    85 

The  twenty-eighth  day  at   90 

The  twenty-ninth  day  at    95 

The  thirtieth  day  at  $1  per  car  per  day;  and  thereafter  at  $l  per 
car  per  day. 

(264) 


Pooling  of  Freight  Cars  21 

The  holding  of  any  individual  car  in  excess  of  60  days  to  be  charged  for 
at  agreed  rate  per  car  per  day,  in  addition  to  the  exchange  balance  rates, 
as  may  be  agreed  on.  Another  plan  that  suggests  itself  is,  in  addition  to  a 
flat  rate  for  Dr.  balance  each  day  to  have  an  arbitrary  percentage  of  all 
revenues  received  from  freight,  switching,  car  service,  etc.^  deducted  and 
Cr.  to  pool — to  be  divided  pro  rata  on  equitable  basis,  or  used  to  maintain 
full  quota  of  cars  in  pool. 

9.  All  cars  to  be  repaired  on  the  line  where  cars  are  in  bad  order, 
under  rules  to  be  agreed  upon  by  the  M.  C.  B.  of  lines  in  the  pool. 

10.  Cars  accepted  in  bad  order  to  be  transferred  at  expense  of  deliv- 
ering line. 

11.  In  cases  of  cars  destroyed,  such  destruction  of  car  to  be  reported 
by  wire  or  United  States  mail ;  from  date  of  such  notice  the  road  destroying 
the  car  to  be  entitled  to  a  claim  of  not  to  exceed  60  days  for  re-building 
the  car,  or  thirty  days  to  pay  for  the  same ;  if  payment  is  made  then  the 
commissioner  or  manager  shall  credit  such  road  and  debit  the  car  owner. 

12.  In  cases  of  new  cars  built,  such  cars,  when  traveling  under  freight 
charges,  shall  not  be  counted  in  exchange  account  and  shall  be  shown  on  in- 
terchange report  as  "new  cars"  and  credit  shown  thereon ;  when  such  cars 
are  delivered  to  connecting  road  for  service,  then  such  road  shall  be  debited 
with  such  cars,  and  owners  credited.  (Cars  returned  under  M.  C.  B.  route 
cards  to  be  credited  same  as  good-order  cars.) 

13.  When  a  road  cannot  receive  traffic  on  account  of  congestion,  em- 
bargo, or  other  causes,  it  must  protect  itself  by  stopping  receipt  or  loading 
for  such  line  until  interchange  is  resumed,  or  it  may  be  arranged  between 
such  lines  to  hold  such  traffic  and  bill  on  line  requesting  cars  held.  (Make  it 
a  matter  of  local  arrangement  and  in  no  way  interfere  with  exchange  ac- 
count.) 

14.  In  the  case  of  cars  in  switching  service,  the  roads  in  interest  to 
arrange  to  bill  each  other  for  such  cars  for  the  actual  time  such  cars  are 
in  the  service  of  the  carrier  line,  plus  one  day  for  switching  and  one  day 
for  the  return  of  car. 


THE  ELECTRIFICATION  OF  AMERICAN   RAILROADS 


By  Thomas  Conway,  Jr., 
Instructor  in  Finance  and  Real  Estate,  University  of  Pennsylvania. 


The  most  important  problems  confronting  railway  officials  at 
the  present  time  are  the  reduction  of  the  costs  of  operation  and  the 
increase  in  the  efficiency  of  the  service.  No  undertaking  is  too  vast 
and  no  expenditure  too  great  if  it  can  be  shown  that  the  results 
secured  will  increase  the  profits  of  the  system.  On  every  hand 
grades  are  being  reduced,  curves  and  grade  crossings  eliminated 
and  cut-ofifs  constructed  in  order  that  the  cost  of  operation  may  be 
decreased.  The  methods  by  which  traffic  may  be  increased  and  the 
cost  of  its  movement  diminished  are  being  carefully  studied  by  rail- 
road managers.  Under  such  conditions  it  is  little  to  be  wondered 
at  that  the  possibilities  of  using  electric  power  upon  our  railroads 
should  receive  careful  attention. 

Electricity  as  a  motive  power  in  transportation  work  was  intro- 
duced little  more  than  a  decade  ago.  The  substitution  of  the  new- 
power  for  the  cable  line  and  the  horse  car  upon  our  city  streets 
entirely  revolutionized  urban  transportation  conditions.  Not  only 
did  it  make  the  schedule  much  more  rapid,  but  it  made  possible  the 
introduction  of  larger  cars  and  a  general  improvement  of  the  system 
which  was  impossible  with  the  former  methods  of  propulsion.  So 
successful  was  electric  power  for  street  railway  work  that  within 
a  very  few  years  a  network  of  lines  was  constructed  extending  from 
the  large  centers  into  the  country  in  all  directions.  The  development 
of  these  large  interurban  systems  which  for  mechanical  perfection 
and  excellence  of  equipment  and  service  rival  the  older  steam  rail- 
roads clearly  demonstrated  that  electricity  had  reached  the  point 
where  it  was  a  formidable  rival  of  the  steam  locomotive.  It  had 
demonstrated  its  ability  to  give  satisfactory  service  under  the  most 
trying  conditions  and  had  made  profitable  the  operation  of  lines 
which  could  not  have  escaped  insolvency  had  they  used  the  older 
form  of  power. 

The  steam  railroads  began  to  investigate  closelv  the  possibilities 

(266) 


Electrification  of  American  Railroads  23 

which  seemed  to  be  open  to  them.  The  New  York,  New  Haven  and 
Hartford  was  the  first  road  to  adopt  electricity  for  railroad  work. 
Its  traffic  situation  is  rather  peculiar.  Extending  through  a  densely 
populated  country  and  having  a  passenger  traffic  out  of  all  propor- 
tion to  the  average  for  the  United  States,  the  road  approaches  more 
closely  to  the  interurban,  in  the  similarity  of  its  traffic  conditions, 
than  any  other  system  in  the  country.  Large  sections  of  this  line 
inmiediately  contiguous  to  populous  centers  have  been  equipped  to 
utilize  electric  power,  and  there  is  in  operation  upon  this  system  an 
electric  passenger  service  which  is  unsurpassed.  The  most  recent 
converts  to  electric  power  have  been  the  New  York  Central  and  the 
Pennsylvania  Railroads.  The  former  is  expending  seventy  million 
dollars  in  electrifying  that  portion  of  its  system  immediately  con- 
tiguous to  New  York  City,  upon  which  there  is  such  a  dense  sub- 
urban traffic,  while  the  Pennsylvania  has  completed  and  put  into 
operation  a  third-rail  electric  line  from  Camden  to  Atlantic  City, 
and  is  making  rapid  strides  toward  the  electrification  of  the  eastern 
end  of  the  Long  Island  Railroad,  which  will  play  an  important  part 
in  the  New  York  terminal  improvements  now  under  construction. 
To  the  layman,  therefore,  the  time  does  not  seem  far  distant  when 
electricity  will  displace  steam  as  a  motive  power.  The  dirty,  noisy 
steam  locomotive  will,  it  appears,  be  speedily  relegated  to  the  place 
occupied  by  historical  relics. 

The  substitution  of  electricity  for  steam  as  a  motive  power 
will  be  made,  not  because  of  mere  sentimental  reasons,  but  because 
it  has  been  sanctioned  and  approved  by  engineers  and  financiers 
after  exhaustive  investigation  and  inquiry.  The  change  entails  an 
enormous  expense,  requiring  the  issue  of  large  amounts  of  new 
capital,  which  will  result  in  a  reduction  in  dividends  or  may  even 
seriously  impair  the  security  of  existing  bonds  if  the  new  form  o 
propulsion  does  not  bring  about  a  material  increase  in  earnings  or 
a  decided  decrease  in  the  expense  of  operation. 

There  were  on  June  30.  1905,  48.357  locomotives  in  active 
service  in  the  country.  There  are  no  accurate  statistics  showing  the 
cost  of  this  equipment.  At  the  present  time  a  freight  or  passenger 
locomotive  costs  about  $15,000.  If  we  take  into  consideration,  how- 
ever, that  a  considerable  portion  of  the  equipment  consists  of  shifting 
engines  and  other  units  of  smaller  size  and  of  lower  cost,  it  seem? 
fair  to  conclude  that  it  would  cost  in  the  neighborhood  of  $12,000 

(267) 


24  The  Annals  of  the  American  Academy 

per  locomotive  to  duplicate  the  equipment  now  in  service.  At  this 
figure  the  American  railroads  have  invested  $580,284,000  in  steam 
locomotives  which  would  sooner  or  later  be  rendered  useless  if  the 
change  was  made. 

It  is  to  be  presumed,  however,  that  the  conversion  would  occur 
gradually.  The  steam  locomotives  as  they  wear  out  would  be 
replaced  by  electric  equipment,  the  cost  of  which  would  be  taken 
out  of  the  earnings  of  the  property  in  the  same  manner  as  has  been 
universally  followed  in  the  past.  Under  such  conditions,  therefore, 
it  is  fair  to  assume  that,  since  an  electric  locomotive  of  the  same 
tractive  power  and  speed  can  be  purchased  for  approximately  the 
same  amount  now  charged  for  a  steam  locomotive,  the  railroads 
would  be  able  in  a  few  years  to  convert  their  equipment  without 
increasing  the  fixed  charges  on  their  properties.  An  examination 
of  the  annual  reports  of  a  number  of  the  largest  railroads  indicates 
that  about  one-twentieth  of  the  locomotives  are  renewed  each  year. 
It  is  likely,  therefore,  that  the  change  of  power  could  be  made 
without  an  increase  in  the  capitalization  of  the  company  in  all  cases 
except  where  the  initial  substitution  of  electricity  is  on  a  large  scale 
as  compared  with  the  total  rolling  stock  equipment  of  the  railroad 
making  the  change. 

It  is  claimed  for  the  electric  locomotive  that  it  is  much  more 
effective  and  capable  of  more  continuous  use  than  the  steam  loco- 
motive. The  report  of  the  Interstate  Commerce  Commission  for 
1904  shows  that  the  average  effective  train  mileage,  not  including 
work  trains,  pushers  or  shifting  mileage,  was  fifty-eight  miles  per 
locomotive  per  day.  If  an  allowance  is  made  for  the  items  which  were 
not  included  and  for  the  use  of  double-headers  and  pushers  where 
heavy  grades  are  encountered,  it  seems  fair  to  assume  that  the 
average  daily  run  of  a  locomotive  in  the  United  States  is  about 
eighty  miles.  This  figure,  however,  is  a  rough  approximation.  The 
performance  of  a  passenger  locomotive  in  long  distance  work  will 
vary  from  ninety  to  nearly  two  hundred  miles  a  day,  and  upon  some 
lines  high-speed  engines  will  make  as  much  as  three  hundred  miles 
in  twenty-four  hours.  The  effectiveness  of  the  locomotive  is,  how- 
ever, much  less  pronounced  in  the  other  classes  of  service. 

The  recent  investigations  of  the  Interstate  Commerce  Com- 
mission have  brought  out  the  fact  that  the  average  locomotive  is 
actually  on  the  road  not  more  than  six  hours  in  each  twenty-four 

(268) 


Electrification  of  American  Railroads  25 

hour  period.  The  remainder  of  the  Hfe  of  the  locomotive  is  spent 
in  yards  and  terminals,  in  making  up  trains,  or  awaiting  an  oppor- 
tunity to  take  its  place  upon  the  main  line.  Almost  one-third  of 
each  day  is  spent  in  the  roundhouse,  in  order  that  the  many  small 
repairs  which  are  constantly  necessary  can  be  made.  The  cleaning 
of  boiter  tubes,  the  inspection  of  the  many  bearings  and  journals 
and  the  adjustment  of  the  complicated  and  delicate  mechanism 
entail  a  heavy  expense  and  occupy  a  large  amount  of  time.  The 
electric  locomotive  is  very  much  more  simple.  It  has  the  advan- 
tage of  being  capable  of  exerting  its  maximum  tractive  power  upon 
very  short  notice.  It  is  not  necessary  to  occupy  a  large  amount  of 
time  in  firing  up,  and  the  repairs  which  must  be  made  require  less 
time  and  seem  to  be  less  expensive.  It  is  urged,  therefore,  that  the 
same  number  of  electric  locomotives  will  be  much  more  effective 
than  are  those  now  in  service. 

There  is  little  data  available  upon  which  to  compare  the  relative 
cost  of  maintenance  of  electric  and  steam  equipment.  In  1904  the 
average  expenditure  for  repairs  per  locomotive  mile  upon  the  steam 
equipment  was  8.1  cents.  The  amounts  spent  by  the  leading  lines 
using  electric  power  are  as  follows :  Manhattan  Railway,  5  cents 
(estimated)  ;  New  York  Subway  lines,  7  cents  (estimated)  ;  Wilkes- 
Barre  and  Hazleton  Railroad,  3.8  cents  (actual)  ;  Lackawanna  and 
Wyoming  Valley  Railroad,  8.4  cents  (actual)  ;  the  Niagara,  Buffalo 
and  Lockport  Railroad,  7.9  cents  (actual). 

These  comparisons,  however,  are  not  sufficient  to  warrant  any 
general  conclusions.  In  no  case  is  it  possible  to  secure  a  record  of 
the  performance  of  an  electric  locomotive  as  separated  from  the 
cost  of  repairing  motors  placed  upon  the  trucks  of  passenger  cars  in 
the  manner  usually  followed  upon  elevated,  subway  and  interurban 
lines.  The  advocates  of  electric  traction  claim  that  it  is  possible  to 
maintain  an  electric  locomotive  at  a  cost  not  exceeding  5^2  cents 
per  mile  run.  When  we  consider,  however,  that  they  are  basing 
their  estimates  upon  the  cost  of  maintaining  equipment  which  is 
practically  new  and  which  consequently  requires  little  or  no  atten  ■ 
tion,  it  seems  advisable  to  conclude  that  the  reduction  in  the  main- 
tenance cost  of  the  new  form  of  the  equipment  is  not  likely  to  play 
any  important  part  in  decreasing  the  cost  of  operation. 

The  production  and  transmission  of  power  necessitates  large 
and  important  expenditures.     In  addition  to  the  cost  of  the  power- 

(269) 


26  The  Annals  of  the  America)i  Academy 

house,  which  will  vary  with  the  volume  of  traffic  and  the  character  of 
the  country,  it  is  necessary  to  install  a  complete  system  of  power  dis- 
tribution. The  method  which  seems  to  be  more  generally  favored 
is  the  third-rail  system,  using  an  alternating  current  with  a  voltage 
upon  the  rail  ranging  from  5,500  to  11,000  volts  and  with  a  feed- 
wire  potential  in  the  neighborhood  of  60,000  volts.  The  cost  of  such 
a  system  varies  greatly.  Not  only  does  the  amount  of  copper 
depend  directly  upon  the  severity  of  the  demand  which  is  placed 
upon  the  distributing  system,  but  the  great  difference  in  the  stand- 
ards of  overhead  work  makes  very  difficult  any  accurate  estimate 
of  the  amount  of  money  which  would  be  necessary  to  electrify  the 
railroads. 

If  a  type  of  overhead  construction  similar  to  that  which  has 
been  adopted  by  the  New  York,  New  Haven  and  Hartford  and  the 
New  York  Central  is  taken  as  a  standard,  there  is  little  difference 
between  the  cost  of  an  overhead  trolley  line  and  the  third-rail  system. 
A  line  equipped  with  No.  0000  wire,  with  the  type  of  insulator  neces- 
sary to  handle  11,000  volts,  supported  by  steel  cables  and  suspended 
from  substantial  steel  bridges,  set  in  concrete,  spanning  the  tracks 
is  fully  as  great  as  third-rail  construction  where  steel  poles  are 
used  to  carry  the  feed  wires.  The  cost  of  such  work  is  approx- 
imately $10,300  per  mile  where  two  tracks  are  to  be  equipped,  while 
for  single  track  work,  using  steel  poles  and  brackets  and  catenary 
support,  the  cost,  at  the  present  time,  closely  approximates  $4,800 
per  mile.  Of  the  216,974  miles  of  railroads  in  operation  in  the 
United  States  in  1905  approximately  four  per  cent  is  double  track, 
including  the  yards  and  sidings  for  single-track  lines.  Upon  this 
basis  the  average  cost  of  overhead  steel  construction  of  the  type 
considered  would,  therefore,  average  approximately  $5,000  per  mile 
of  track,  entailing  a  total  expenditure  for  the  equipment  of  the 
mileage  now  in  existence  of  $1,084,870,000.  In  addition  to  this,  it 
would  be  necessary  to  expend  about  $500  per  mile  of  track  for 
bonding,  which  would  add  $108,487,000  to  the  capital  account  of 
our  railroads. 

It  is  improbable,  however,  that  such  an  expensive  system  of 
power  distribution  would  be  generally  adopted.  The  average  rail- 
road would  content  itself  with  the  use  of  wooden  poles  and  a  con- 
struction very  similar  to  that  followed  upon  the  best  interurban 
roads.     It  is  very  unlikely,  however,  judging  from  interurban  ex- 


Electrification  of  American  Railroads  27 

perience,  that  it  would  be  possible  for  a  railroad  to  install  a  satis- 
factory system  of  overhead  work  at  a  cost  of  less  than  $4,000  per 
mile. 

The  weakness  in  a  system  of  electric  traction  at  the  present 
time  is  not  in  the  apparatus  for  the  generation  of  power,  nor  in  the 
electric  locomotive,  but  is  to  be  found  in  the  power  distributing 
system.  The  American  types  of  dynamos  and  motors  are  so  efficient 
that  further  improvements  will  have  but  little  effect  upon  the  cost 
of  operation.  The  loss  of  power  and  energy  occurs  between  the 
bus-bar  on  the  switchboard  and  the  motor.  Even  under  the  most 
favorable  conditions  it  is  necessary  to  develop  about  i  2-3  horse 
power  in  order  to  secure  a  horse  power  at  the  motor. 

It  is  obvious  that  under  such  conditions  the  electric  motor  is 
badly  handicapped.  The  steam  engine  is  a  direct  connected  ma- 
chine, applying  the  power  generated  to  the  drivers  with  little  or 
no  waste.  The  loss  of  energy  which  occurs  in  the  distributing 
system  upon  the  electric  line  must,  therefore,  be  overcome  by  the 
more  effective  method  of  power  production  which  is  possible  in  a 
plant  where  large  condensing  engines  can  be  employed  and  where 
it  is  possible  to  use  a  type  of  boiler  which  will  extract  a  greater 
amount  of  energy  from  a  given  weight  of  coal.  The  relative  ineffi- 
ciency of  the  locomotive  comes  about  because  of  the  necessity  of 
using  a  high-pressure  engine  and  a  boiler  which  is  relatively  simple, 
since  it  must  stand  hard  usage  and  rough  treatment.  There  are  no 
figures  accessible  showing  the  cost  of  power  per  horse  power  upon 
a  locomotive.  It  is  only  possible  to  make  a  comparison  by  figuring 
the  cost  of  moving  the  tonnage  annually  hauled  by  railroads  and  the 
approximate  weight  of  the  passengers  and  equipment  which  are 
handled  under  the  two  systems  of  propulsion. 

Mr.  Louis  B.  Stillwell  and  Mr.  Henry  Sinclair  Putnam,  in  a 
paper  read  before  the  meeting  of  the  American  Institute  of  Elec- 
trical Engineers,  held  in  New  York  in  January  of  this  year,  sub- 
mitted an  elaborate  calculation  intended  to  ascertain  the  relative 
cost  of  electric  and  steam  power  for  railroad  work.  According  to 
their  estimate,  it  would  be  possible  to  effect  a  very  material  saving 
in  the  cost  of  operation  by  using  electric  power.  "If  all  the  rail- 
roads of  the  United  States  were  to-day  operated  by  electricitv.  using 
the  single  phase  alternating  current  system  at  the  potential  adopted 
for  the  equipment  of  the  New  York,  New  Haven  and  Hartford 

(271) 


28  The  Annals  of  the  American  Academy 

Railroad,  the  energy  reqviired  for  operation  being  developed  by 
power  plants  such  as  are  to-day  in  extensive  use  and  transmitted 
at  potentials  well  within  the  Hunts  established  in  practical  service, 
and  if  the  rolling  stock  equipment  consisted  of  locomotives  and 
multiple  unit  trains  fitted  with  motors  and  control  apparatus,  no 
better  than  the  best  which  now  exist,  the  aggregate  cost  of  opera- 
tion, which  in  1905  amounted  in  round  numbers  to  $1,400,000,000, 
would  be  reduced  by  about  $250,000,000." 

"In  1905  the  average  gross  earnings  of  our  railroads  per  mile 
of  line  were  $9,598,  and  the  average  operating  expenses  $6,409. 
The  foregoing  calculation  leads  to  the  conclusion  that  high  class 
electric  equipment  would  reduce  this  average  cost  to  $5,265.  The 
difference  is  $1,144  per  mile  of  line,  against  which  apparent  saving 
must  be  charged  the  annual  interest  and  depreciation  of  the  power 
plant,  the  addition  to  permanent  way  equipment  comprising  over- 
head construction  and  track  bounding,  and  the  transmission  circuits 
and  the  sub-stations  with  their  equipment." 

These  conclusions  were  endorsed,  in  the  main,  by  Mr.  W.  S. 
iSIurry,  chief  electrical  engineer  of  the  New  York,  New  Haven  and 
Hartford,  and  by  the  experts  of  the  Westinghouse-Church-Kerr 
Company,  and  the  General  Electric  Company.  It  seems  fair  to 
assume,  therefore,  that  they  are  reasonably  accurate.  With  this 
data  as  a  starting  point,  the  decision  of  the  question  as  to  whether 
or  not  the  substitution  of  power  will  be  profitable  under  present- 
day  conditions  is  an  accounting  proposition.  In  order  to  operate 
the  present  service  it  will  be  necessary  to  have  a  chain  of  power 
plants  capable  of  delivering  a  maximum  output  of  about  2,800,000 
kilowatts  which  would  cost  approximately  $400,000,000.  If  we  add 
to  this  $1,084,870,000  as  the  cost  of  the  distributing  system,  $108,- 
487,000  for  the  expense  of  bonding  tracks,  and  $220,000,000  for 
sub-stations,  rearranging  telegraph  lines  and  special  work  in  yards 
and  terminals,  we  find  that  the  change  in  power,  exclusive  of  the 
cost  of  locomotives,  which  we  will  assume  is  gradually  provided  out 
of  earnings,  involves  an  expenditure  of  $1,813,357,000.  If  we  allow 
the  usual  ten  per  cent  rate  of  depreciation  which  has  been  found 
necessary  in  the  case  of  the  best  interurban  roads,  it  will  be  seen 
that  the  annual  cost  of  maintenance  of  these  items  will  be  $i8t,- 
335,700,  while  the  saving  effected  by  electrical  traction  will  be  only 
$250,000,000.     The    saving    in    the    cost    of    operation,    therefore, 

(272) 


Electrification  of  American  Railroads  29 

because  of  the  introduction  of  electric  power  would  be  $68,665,000. 
In  order  to  effect  this  saving  it  will  be  necessary  to  make  an  invest- 
ment of  between  $1,800,000,000  and  $2,000,000,000.  If  the  rail- 
roads secure  this  money  by  issuing  four  per  cent  bonds,  which  is 
about  the  lowest  rate  that  it  could  be  obtained  for.  even  under  th(^ 
most  favorable  conditions,  the  annual  interest  charge  would  be 
between  $72,000,000  and  $80,000,000.  If  these  calculations  are 
correct  the  transformation  of  power  would  involve  an  increase  m  the 
total  expenditure  of  between  $8,000,000  and  $12,000,000  per  year. 
When  we  consider,  moreover,  that  these  results  are  based  upon  a 
period  when  the  railroads  are  congested  with  traffic  and  when 
conditions  prevail  on  every  hand  which  are  most  favorable  to  demon- 
strating the  economies  of  electric  traction,  it  is  easy  to  understand 
why  railroad  officials  regard  the  results  of  electric  operation  as 
being  extremely  problematical.  The  effects  of  a  decrease  in  the 
tonnage  in  lean  years  could  be  offset  much  less  readily  with  the  new 
form  of  power.  Interest  charges  and  depreciation  would  go  on 
unchanged,  while  the  cost  of  power  production  per  kilowatt  would 
steadily  increase  with  the  shrinkage  in  the  amount  consumed.  The 
experience  of  the  interurbans  demonstrates  that  while  the  cost  o\ 
operation  per  car-mile  rapidly  decreases  with  a  growth  in  the  busi- 
ness, yet  the  possibilities  of  cutting  down  expenses  in  periods  oi 
declining  traffic  are  very  limited.  Electricity  is  pre-eminently  the 
power  upon  lines  where  great  traffic  density  prevails,  but  it  com- 
pares poorly  with  steam  where  traffic  is  light  and  trains  infrequent. 
At  the  present  time,  therefore,  it  seems  highly  unlikely  that 
electric  pow'er  will  be  used  except  under  special  conditions  and  where 
the  traffic  is  heavy.  Most  of  our  railroads  are  even  yet  in  a  half- 
developed  condition.  It  will  be  years  before  they  will  be  able  to 
show  a  traffic  sufficiently  dense  to  warrant  the  expenditure  which 
i.s  entailed  in  the  installation  of  electric  power.  The  success  cf  thf 
New  York,  New  Haven  and  Hartford  and  of  the  New  York  Cen- 
tral, and  the  adoption  of  the  third-rail  system  by  the  Pennsylvania 
for  its  Long  Island  service,  marks  the  beginning  of  the  use  of  elec- 
tricity as  a  motive  power  upon  lines  where  the  passenger  traffic 
constitutes  a  very  important  item.  The  operation  of  a  large  number 
of  trains  in  small  units  is  much  less  expensive  with  electricity  than 
with  steam,  and  in  addition  the  provision  of  clean,  attractive  and 
quick  service  stimulates  traffic  to  such  a  degree  as  to  materially 

(273) 


JO  The  Annals  of  the  American  Academy 

affect  the  earnings  of  the  property.  As  the  short  distance  passenger 
work  increases  we  •  may  expect  to  see  a  gradual  substitution  of 
electricity  for  steam  upon  the  sections  of  our  railroads  contiguous 
to  the  large  cities  and  towns. 

Electricity  will  also  play  an  important  part  upon  the  mountain 
divisions  of  our  large  systems.  It  is  upon  these  stretches  of  track 
that  we  have  the  coincidence  of  water  power  and  sharp  grades.  The 
production  of  the  current  in  such  sections  can  be  carried  on  at  a 
minimum  expense.  The  electric  locomotive  possesses  an  immense 
advantage  over  the  steam  engine  where  a  high  maximum  tractive 
work  for  a  limited  time  is  demanded.  It  is  possible  to  force  a 
locomotive  far  beyond  its  rated  power  for  a  few  minutes,  but  the 
boiler  soon  falls  behind  the  demands  which  are  made  upon  it,  with 
the  result  that  we  have  a  reaction  rendering  the  machine  even  less 
effective  than  it  would  be  under  normal  conditions.  An  electric 
locomotive  not  only  exerts  its  maximum  power  within  a  few  seconds 
of  the  time  it  is  put  in  operation,  but  it  can  be  forced  above  its 
normal  rate  for  long  periods  of  time  without  materially  affecting 
its  performance.  Experiments  have  shown  that  it  is  possible  for  an 
electric  locomotive  to  go  from  twenty-five  to  fifty  per  cent  above 
the  rating,  and  in  cases  where  the  strain  is  only  for  a  few  minutes 
it  has  been  possible  to  get  out  of  them  one  hundred  per  cent  more 
power  than  they  were  calculated  to  produce.  When  we  compare 
these  results  with  the  possibilities  of  forcing  steam  operated  ma- 
chines and  when  we  consider  the  extreme  cheapness  of  power  upon 
mountain  divisions,  we  can  readily  understand  why  it  is  that  so 
many  of  the  large  systems  are  taking  steps  to  electrify  these  trouble- 
some stretches  of  their  roads.  Electricity  as  a  motive  power  has 
made  very  important  strides,  and  has  demonstrated  its  superiority 
where  unusual  conditions  exist  and  where  great  density  of  traffic 
is  encountered.  The  universal  adoption  of  electricity,  however,  is 
a  long  way  off.  Not  until  a  better  system  of  power  transmission 
has  been  devised  or  the  traffic  of  our  railroads  has  become  much 
denser  can  we  hope  to  see  it  generally  adopted. 


PUBLIC  REGULATION  OF  STREET  RAILWAY 
TRANSPORTATION 


By  Emory  R.  Johnson, 

Professor    of   Transportation    and    Commerce,    University    of    Pennsylvania, 

Philadelphia. 


The  General  Problem  and  M ethods.^Street  railway  transporta- 
tion being  a  monopoly  service,  its  regulation  involves  the  public 
control  of  a  monopoly.  The  fact  has  for  some  time  been  generally 
accepted  that  no  effective  regulation  of  street  railway  fares  or  service 
can  be  accomplished  either  by  chartering  many  rival  companies 
within  the  same  municipal  area  or  by  enacting  stringent  laws  against 
the  consolidation  of  the  several  lines  into  a  single  system.  Indeed, 
the  service  can  be  much  better  performed,  and  at  a  lower  cost,  by 
the  large  company  than  by  numerous  small  ones.  Consolidation 
makes  possible  a  more  systematic  extension  of  the  tracks,  and  an 
earlier  adoption  of  technical  improvements ;  but  the  unification  of 
the  control  of  the  service,  although  it  results  in  a  more  economical 
and  efficient  service,  so  strengthens  the  power  of  monopoly  pos- 
sessed by  the  corporations  performing  the  service  that  effective 
public  regulation  is  demanded. 

Public  control  can  be  accomplished  either  by  public  ownership, 
or  by  the  regulation  of  the  corporations  entrusted  with  the  per- 
formance of  the  service.  Both  methods  have  been  adopted,  and 
each  has  proven  successful.  The  determination  of  which  is  the 
better  plan  for  a  particular  community  to  adopt  is  mainly  a  question 
of  expediency,  whose  solution  depends  on  the  administrative  ability 
of  the  local  government,  and  upon  the  traditional  attitude  of  the 
people  toward  the  government.  As  with  the  question  of  state 
ownership  of  railroads,  so  with  the  problem  of  public  ownership  of 
street  railways,  the  same  solution  may  not  be  wise  for  all  countries 
or  for  all  periods  of  time. 

The  American  System  of  Regulation. — In  the  United  States 
the  street  railways  are  owned  and  operated  by  corporations  char- 
tered by  the   states   from   w^hich   the   companies   receive   charters 

(275) 


32  The  Annals  of  the  American  Academy 

imposing  such  conditions  upon  the  companies  as  the  states  may 
deem  wise  at  the  time  the  grant  is  made.  After  receiving  the 
charter  from  the  state  the  corporation  must  secure  from  the  city  in 
which  the  hues  are  to  be  located  a  franchise  giving  permission  to 
construct  the  proposed  railway,  and  the  city  has  the  right  to  stipu- 
late the  conditions  under  which  the  corporation  may  use  the  streets 
for  laying  tracks  and  operating  its  cars. 

American  states  and  cities  place  fewer  restrictions  than  Euro- 
pean countries  do  upon  the  powers  of  street  railway  companies.  At 
the  beginning  of  street  railway  construction,  the  practice  of  the 
states  was  to  grant  franchises  in  perpetuity ;  and  such,  indeed,  is 
the  policy  of  many  states  at  the  present  time,  but  there  are  some 
states  which  now  restrict  the  duration  of  the  franchises  to  a  limited 
period  of  twenty  to  fifty  years. 

The  power  to  regulate  fares  and  to  make  stipulations  as  to  the 
frequency  of  the  service,  the  paving  and  repair  of  the  streets  occu- 
pied, the  removal  of  snow,  and  to  supervise  other  details  of  manage- 
ment is  possessed  by  the  cities  and  towns,  and  recently  the  tendency 
of  the  cities  has  been  to  exercise  their  power  to  regulate  the  street 
railway  service  with  more  detail  than  was  formerly  customary. 

With  the  rapid  growth  of  cities  and  of  suburban  and  rural 
population,  and  with  the  use  of  electric  traction,  the  profits  of  the 
street  railway  business  have  increased  so  greatly  as  to  enable  the 
corporations  performing  the  service  to  pay  the  public  more  for  the 
privileges  received  from  the  state  and  city.  Moreover,  with  the 
development  of  great  cities,  with  the  more  vital  dependence  of  the 
public  upon  street  railway  transportation,  and  with  the  consolidation 
of  the  street  railway  lines  in  our  large  cities,  and  in  the  more 
populous  country  districts,  so  that  single  corporations  frequently 
control  hundreds  of  miles  of  tracks,  the  necessity  for  careful 
government  regulation  of  street  and  electric  railways  becomes  in- 
creasingly necessary.  The  question  is  not  whether  there  should  be 
public  regulation  of  the  street  railways,  but  how  the  public  should 
exercise  its  control. 

Street  Raihuay  Regulation  in  Massachusetts. — The  methods  and 
tendencies  of  public  regulation  of  street  railways  in  the  United 
States  may  be  illustrated  by  referring  to  Massachusetts,  New  York 
City  and  Chicago.  In  Massachusetts  the  law  provides  that  the 
street  railway  companies  chartered  by  the  state  shall   secure  the 

(276) 


Street  Railway  Transportation  33 

streets  for  the  location  of  their  lines  "with  such  restrictions  as  in 
the  judgment  of  the  selectmen  or  the  aldermen  the  public  interests 
may  require."  The  terms  and  conditions  under  which  street  rail- 
ways may  be  built  are  thus  under  the  complete  control  of  the  local 
government  boards.  The  state  in  the  past  has  usually  granted  the 
franchises  in  perpetuity,  but  the  city  and  town  governments  may  at 
any  time  revoke  the  right  and  concessions  that  have  been  allowed, 
if  the  companies  give  adequate  reason  for  such  revocation  by  failing 
to  observe  their  obligations  to  the  public.  Although  this  power  to 
revoke  a  franchise  has  not  been  exercised  frequently,  the  possession 
of  the  power  has  doubtless  enabled  the  towns  to  secure  better  terms 
when  negotiating  with  street  railway  companies. 

The  State  Board  of  Railroad  Commissioners  of  Massachusetts 
has  supervision  over  both  railroads  and  street  railways.  The  com- 
mission's approval  of  the  location  of  a  proposed  street  railway  must 
be  secured  before  the  line  may  be  constructed.  The  commission 
regulates  the  amount  of  sto.cks  and  bonds  the  company  may  issue, 
and  its  consent  must  be  secured  to  the  terms  of  a  lease,  sale  or 
consolidation.  It  also  has  supervision  over  the  fares  and  the  service 
of  street  railways,  with  power  to  make  investigations  and  to  recom- 
mend such  regulative  legislation  as  may  be  deemed  necessary.  The 
over-capitalization  characteristic  of  street  railway  companies  in  many 
states  has  been  prevented  in  Massachusetts. 

The  careful  foresight  exercised  by  Massachusetts  in  the  regula- 
tion of  street  railways  is  exemplified  in  the  policy  of  public  control 
adopted  in  the  construction  and  management  of  the  Boston  subways. 
The  city  of  Boston,  acting  through  the  Rapid  Transit  Commission, 
has  constructed  the  two  subways  now  in  operation,  and  is  building  a 
third  tunnel.  Before  the  first  tunnel  was  completed  it  was  leased 
to  the  Boston  Elevated  Railway  Company  for  twenty  years  from  the 
completion  of  the  line  at  an  annual  rental  amounting  to  four  and 
seven-eighths  per  cent  of  the  cost  of  construction.  This  rental  wall 
enable  the  city  of  Boston  to  meet  the  interest  on  the  cost  of  the 
snbway  and  to  pay  ofif  the  debt  in  thirty-seven  years.  The  second 
— the  East  Boston  tunnel — was  opened  at  the  close  of  1904,  and  is 
leased  to  the  Boston  Elevated  Railway  Company  until  1922  for  an 
annual  rental  equaling  four  and  one-half  per  cent  of  the  cost.  The 
public  has  control  over  the  fares  on  all  street  railways  lines,  includ- 
ing the  subways  and  elevated  roads. 

C277) 


34  The  Annals  of  the  American  Academy 

Public  Regulation  in  Neiv  York. — In  accordance  with  general 
practice  in  the  United  States,  the  street  railway  companies  in  New 
York  must  be  incorporated  under  general  law.  The  charters  are 
subject  to  repeal  and  amendment  at  any  time.  The  companies  thus 
incorporated  must  secure  the  consent  of  the  cities  in  which  their 
lines  are  to  be  located,  and  also  of  the  owners  of  one-half  of  the 
value  of  the  abutting  property  (unless  it  should  prove  to  be  impos- 
sible to  secure  the  consent  of  the  property  owners,  in  which  case 
the  court  may  appoint  a  commission  to  appraise  the  damages  that 
may  result  to  private  property)  before  construction  can  be  com- 
menced. Local  authorities  have  the  right  to  make  as  a  condition 
of  the  grant  of  a  franchise  the  annual  payment  of  an  amount  not 
exceeding  three  per  cent  of  the  gross  earnings.  The  fare  for  a 
continuous  ride  is  limited  to  five  cents,  and  the  legislature  has  defi- 
nitely reserved  the  right  to  regulate  the  fare  at  any  time. 

The  regulation  of  street  railway  transportation  in  New  York 
City  has  from  time  to  time  been  dealt  with  by  the  legislature.  Since 
1884  cities  of  1,200,000  population  in  New  York  State  have  been 
authorized  to  require  of  a  street  railway  company  taking  out  a 
charter  five  per  cent  per  annum  of  its  gross  receipts.  Under  the 
charter  of  Greater  New  York  in  1897,  that  city  is  prohibited  from 
granting  a  street  railway  franchise  for  a  longer  period  than  twenty- 
five  years  (with  privilege  of  renewal  for  a  second  period  of  twenty- 
five  years),  and  the  city  is  required  to  invite  bids  for  the  franchise 
and  to  grant  the  franchise  to  the  responsible  company  offering  to 
give  the  city  the  largest  share  of  the  gross  receipts  from  trafific.  It 
was,  however,  found  necessary  for  the  state  to  supplement  this  pro- 
vision of  the  charter  by  a  special  act  allowing  New  York  City  to 
grant  a  franchise  for  fifty  years  to  the  company  constructing  and 
operating  the  subway  recently  completed.  But  it  is  not  probable 
that  it  will  be  necessary  to  make  exceptions  in  the  case  of  such  sub- 
ways as  may  be  constructed  in  the  future. 

The  experience  of  New  York  City  in  dealing  wnth  the  street 
railway  companies  on  the  principle  of  granting  franchises  for  a 
limited  period  and  selling  them  to  the  highest  responsible  bidder 
has  been  satisfactory,  and  the  city  is  in  a  position  to  derive  much 
more  revenue  from  its  street  railway  companies  than  it  could  secure 
under  the  system  that  formerly  prevailed.  Whether  the  plan  of 
disposing  of  street  railway  franchises  at  auction  will  prove  highly 

(278) 


Street  Railway  Transportation  35 

successful  is,  however,  doubtful,  because  of  the  difficulty  of  securing 
competitive  bids  for  the  privilege  of  constructing  street  railway 
lines  in  a  city  where  one  company  controls  the  entire  surface  and 
elevated  system  of  lines.  Under  these  conditions,  when  the  fran- 
chise is  put  up  for  auction,  the  city  is  practically  obliged  to  deal 
with  one  corporation,  and  is  forced  to  make  as  good  terms  as 
possible  with  a  single  company.  If  the  public  authorities  are  intelli- 
gent regarding  the  value  of  the  franchise  to  be  disposed  of,  and  are 
zealous  in  protecting  the  public  interests,  it  is  possible  for  the  city 
under  the  present  plan,  even  without  competition,  to  secure  a  good 
price  for  the  franchise ;  but  in  this  case,  as  in  all  questions  of  munic- 
ipal government,  success  depends  upon  the  intelligence  and  honesty 
of  public  officials. 

The  City  of  New  York  has  secured  an  excellent  subway  under 
conditions  relatively  favorable  to  the  public.  As  time  goes  on 
experience  will  show  that  the  terms  granted  by  the  city  to  the  Inter- 
borough  Rapid  Transit  Company  were  unnecessarily  liberal,  but  it 
is  probable  the  terms  were  as  good  as  could  be  obtained  at  the  time 
they  were  decided  upon.  The  act  of  1891  for  the  construction  of 
the  subway  stipulated  that  the  work  should  be  carried  out  with 
private  capital,  but  nothing  was  accomplished  under  this  act,  and  in 
1894  the  city  decided  upon  municipal  construction  and  private  opera- 
tion of  the  subway.  After  this  plan  had  been  favorably  voted  upon 
by  the  people  of  the  City  of  New  York,  it  was  still  uncertain 
whether  private  capital  could  be  found  to  construct  the  subway 
with  the  use  of  public  funds,  and  to  assume  the  obligations  imposed 
by  law  for  the  repayment  of  the  money  advanced  by  the  city. 
Finally  a  contractor  was  found  willing  to  assume  this  obligation 
on  the  condition  of  a  fifty  years'  lease.  The  traffic  of  the  subway 
has  been  larger  than  was  anticipated,  and  the  financial  success  of  the 
enterprise  is  fully  assured.  Indeed,  this  first  subway  promises  to 
be  so  profitable  that  capitalists  are  now  willing  to  build  parallel  sub- 
ways. New  York  will,  doubtless,  have  numerous  subways  con- 
structed during  the  next  score  of  years,  and  it  is  not  impossible 
that  the  city  may  be  able  ultimately  to  dispense  with  its  north  and 
south  surface  lines  and  thereby  reserve  the  streets  for  vehicular 
traffic. 

Illinois  and  Chicago. — The  problem  of  street  railway  regula- 
tion has  been  under  public  consideration  in  Illinois  and  Chicago 

(279^ 


36  The  Annals  of  the  American  Academy 

almost  continuously  during  the  past  ten  years.  The  numerous 
franchises  held  by  the  two  corporations  controlling  the  nine  hun- 
dred miles  of  street  railways  in  that  large  city  were  limited  to  a 
period  of  twenty  years,  the  end  of  which  period  in  most  instances 
fell  between  1903  and  1907.  Between  1897  and  1900  the  street 
railway  corporations  made  an  unsuccessful  attempt  to  secure  the 
extension  of  their  franchises  for  a  period  of  fifty  years.  This 
aroused  a  vigorous  public  opposition,  which  in  1903  led  to  the 
passage  of  a  state  law  authorizing  the  cities  of  Illinois  to  purchase 
and  operate  street  railways.  This  law  applies  generally  to  all  cities, 
but  was  passed  with  special  reference  to  the  City  of  Chicago. 

Most  of  the  early  street  railways  in  Chicago  were  constructed 
under  franchises  having  a  duration  of  twenty-five  years.  Under  the 
law  passed  in  1865  the  street  railway  companies  then  existing  were 
granted  an  extension  of  their  charters  for  ninety-nine  years.  This 
law  was  very  unpopular  and  led  to  a  great  controversy,  the  result 
of  which  was  a  compromise  in  1874  by  which  all  street  railway 
franchises  were  to  be  limited  in  the  future  to  a  period  of  twenty 
years.  In  1883  all  existing  charters  were  extended  to  twenty  years 
from  date. 

Recent  events  in  Chicago  are  of  such  interest  that  they  merit 
statement  in  some  detail.  In  1897  the  street  railway  companies  of 
Chicago,  foreseeing  that  most  of  their  charters  would  probably 
expire  between  1903  and  1907,  induced  the  legislature  of  the  State 
of  Illinois  to  pass  the  so-called  Allen  law,  which  extended  all  street 
railway  charters  fifty  years  and  authorized  the  charging  of  a  five 
cent  fare  during  that  period.  This  act  of  the  state  legislature  aroused 
strong  and  general  opposition  on  the  part  of  the  people  of  Chicago, 
and  the  City  Councils,  in  1898,  refused  to  grant  the  franchises  re- 
quired by  the  street  railway  companies  in  order  to  avail  themselves 
of  the  privileges  they  had  secured  by  the  Allen  law.  The  universal 
protest  against  the  Allen  law  led  to  its  repeal  by  the  state  legislature 
in  1899.  This  was  followed  by  a  strong  agitation  in  Chicago  to 
bring  about  municipal  ownership  and  operation  of  the  street  rail- 
ways within  the  city.  The  result  of  this  movement  was  the  passage, 
in  May,  1903,  of  the  Mueller  law,  authorizing  "cities  to  acquire, 
construct,  own,  operate  and  lease  street  railways  and  to  provide  the 
means  therefor." 

The  City  Councils  decided  to  give  the  people  of  the  City  of 

(280) 


Street  Railway  Transportation  37 

Chicago,  by  means  of  a  referendum,  a  right  to  decide  whether  the 
city  should  avail  itself  of  the  powers  granted  by  the  Mueller  law,  and 
in  1904  the  voters  of  the  city  authorized  the  city  government  "to 
proceed  without  delay  to  acquire  the  ownership  of  the  street  rail- 
ways." The  City  Councils  were  slow  in  acting  in  accordance  with 
the  referendum,  and  consequently  the  matter  came  up  for  popular 
vote  upon  a  second  referendum  in  1905,  at  which  time  the  people 
decided  against  granting  franchises  to  street  railway  companies 
permitting  them  to  continue  the  operation  of  the  street  railways. 
These  referendum  votes  practically  decided  that  the  City  of  Chicago 
should  proceed  with  the  acquisition  of  the  street  railway  lines  within 
the  city's  limits. 

Before  the  city  could  accomplish  the  municipalization  of  the 
street  railways,  three  problems  had  to  be  settled : 

(i)  The  first  of  these  was  as  to  the  actual  date  of  the  expira- 
tion of  the  charters  held  by  the  street  railways  in  the  city.  As  was 
stated  above,  the  legislature  in  1865  had  granted  a  ninety-nine-year 
extension  to  street  railway  charters ;  but  in  1874  a  law  had  been 
passed  limiting  all  street  railway  franchises  to  twenty-year  periods, 
and  in  1883  another  law  had  been  enacted  extending  charters  to 
twenty  years  from  date.  The  street  railway  companies  claimed  that 
the  ninety-nine-year  act  was  valid,  and  that  none  of  their  charters 
expired  before  1958.  This  matter  was  passed  upon  by  the  state 
courts  and  finally  decided  by  the  United  States  Supreme  Court  on 
the  i6th  of  March,  1906,  which  court  held  that  "the  ninety-nine- 
year  act,  while  extending  the  corporate  existence  of  the  three  com- 
panies to  which  it  applied,  did  not  extend  their  street  privileges." 

(2)  Another"  important  question  that  required  settlement  was 
the  purchase  price  to  be  paid  the  street  railway  companies  by  the 
city,  and  the  terms  under  which  the  city  should  acquire  the  owner- 
ship of  the  property.  After  extensive  negotiations  an  agreement 
was  reached  at  the  close  of  1906  that  the  street  railway  property 
should  be  valued  at  $50,000,000,  the  property  of  the  Union  Traction 
system  being  considered  worth  $29,000,000,  and  that  of  the  City 
Railway  system  at  $21,000,000.  The  power  of  the  city  to  issue 
certificates  of  indebtedness  for  the  purpose  of  purchasing  the  street 
railways  in  accordance  with  the  authority  granted  by  the  Mueller 
law  has  been  decided  in  the  courts  and  in  favor  of  the  city,  viz.,  the 
Mueller  law  has  been  upheld. 

(281) 


38  The  Annals  of  the  Atnoican  Acaaemy 

(3)  The  third  large  question  was  whether  the  city  should  take 
over  the  street  railway  lines  at  once  and  operate  them,  or  whether 
it  should  leave  them,  temporarily  at  least,  in  the  hands  of  the  present 
operating  companies,  to  be  managed  by  them  in  accordance  with 
the  terms  to  be  agreed  upon  between  the  companies  and  the  city. 
The  officials  representing  the  City  of  Chicago  have  decided  in  favor 
of  leaving  the  property  in  the  ownership  and  under  the  management 
of  the  street  railway  companies,  under  the  provisions  of  a  city  ordi- 
nance authorizing  the  city  to  take  over  the  street  railways  whenever 
it  may  choose  to  do  so  at  the  agreed  value  of  $50,000,000. 

An  ordinance  to  carry  out  this  program  is  now  before  the  City 
Councils  of  Chicago,  and  the  people  of  the  city,  by  referendum  vote, 
are  to  decide  at  the  spring  election  what  the  City  Councils  shall  do. 
It  is  highly  probable  that  the  vote  will  instruct  the  City  Councils  to 
pass  the  ordinance  now  pending. 

The  provisions  of  this  ordinance  merit  careful  consideration  by 
all  students  of  the  public  regulation  of  street  railways.  The  ordi- 
nance^ provides  for: 

The  immediate  rehabilitation  of  the  said  street  railway  systems  and  for 
the  right  of  the  City  of  Chicago  or  its  licensee  to  purchase  the  same,  on 
the  first  day  of  February  and  on  the  first  day  of  August  of  each  and  any 
year,  upon  giving  six  months',  previous  notice,  in  writing,  and  upon  definite 
terms  fixed  in  the  respective  ordinances. 

The  city  and  the  companies  respectively  agree  that  the  value  of  the 
present  tangible  and  intangible  property  of  the  Union  Traction  system  is 
$29,000,000,  and  of  the  City  Railway  system,  $21,000,000. 

The  companies  agree  that  they  will  proceed  at  once  to  rehabilitate  and 
re-equip  their  entire  street  railway  systems  and  put  the  same  in  first-class 
conditions,  in  full  compliance  with  specifications  for  such  work  and  under  the 
supervision  of  a  Board  of  Supervising  Engineers  created  under  the  ordinances. 

The  city  or  any  other  company  authorized  by  it  is  given  the  right  to 
purchase  the  entire  property  of  the  two  systems,  or  either  of  them,  upon 
the  payment  of  the  agreed  price  of  the  present  property  of  each  company, 
respectively,  and  the  cost  of  rehabilitation  and  extensions,  including  fair 
allowances  for  construction,  profit  and  brokerage. 

If  the  street  railways  are  to  be  so  acquired  for  operation  by  a  private 
corporation,  for  its  own  profit,  the  purchase  price  is  to  be  increased  twenty 
per  cent. 

The  companies  are  limited,  during  their  operation,  to  an  interest  return 
of  five  per  cent  upon  the  agreed  value  of  their  property,  plus  the  cost  of 

^This  summary  of  the  main  provisions  of  the  ordinances  is  quoted  from  the 
report  submitted  to  the  City  Councils  of  Chicago,  January  15,  1907,  by  the  Com- 
mittee on  Local  Transportation,  Charles  Werno,  chairman. 

(282) 


Street  Railway  Transportation  39 

rehabilitation  and  extensions.  The  fare  for  one  continuous  ride  within  the 
city  is  to  be  five  cents. 

The  net  profits  from  the  operation  of  the  street  railways  are  to  be 
divided  between  the  city  and  the  companies  in  the  ratio  of  fifty-five  per  cent 
to  the  city  and  forty-five  per  cent  to  the  companies. 

The  ordinances  provide  for  a  comprehensive  system  of  transfers  and 
through  routes,  by  means  of  which  passengers  can  ride  over  all  connecting 
lines  within  the  city  limits. 

The  companies  agree,  upon  demand  of  the  city  and  at  the  city's  option, 
to  furnish  funds  to  the  amount  of  $5,000,000  for  the  construction  of  a 
central  subway,  to  be  built  and  owned  by  the  city,  the  plans  for  which  are 
to    be   approved   by   the    Board   of   Supervising   Engineers. 

The  British  System  of  Street  Railivay  Regulation. — The  regu- 
lation of  street  railways  in  Great  Britain  is  based  upon  the  Tram- 
ways Act  of  1870.  Most  of  the  tramways  were  constructed  by  pri- 
vate companies.  Under  the  act  of  1870  the  (i)  tenure  of  their 
franchises  is  limited  to  twenty-one  years,  (2)  the  local  authorities 
have  pow'er  to  pass  upon  or  veto  the  proposed  tramway  project,  and 
(3)  also  have  power  to  buy  out  the  tramway  company  at  the  end  of 
the  twenty-one-year  period  by  "paying  the  then  value  (exclusive  of 
any  allowance  for  past  or  future  profits  of  the  undertaking  or  any 
compensation  for  compulsory  sale,  or  other  consideration  whatso- 
ever) of  the  tramway." 

Under  the  act  of  1870  the  nnmicipalities  of  Great  Britain  have 
had  the  authority  to  construct,  purchase  and  manage  their  tramway 
systems.  Since  1891  the  franchises  of  many  street  railway  com- 
panies have  reached  their  term  limit,  and  numerous  cities  have  had 
the  option  of  renewing  these  franchises  or  purchasing  the  tramways 
in  accordance  with  the  provisions  of  the  act  of  1870.  The  tendency 
has  been  for  the  cities  to  buy  out  the  tramways  and  either  operate 
the  railways  as  municipal  enterprises  or  to  lease  them  to  private 
companies  for  operation  under  municipal  supervision.  Municipal 
operation  as  w^ell  as  ow-nership  seems  to  be  the  favored  policy,  and 
most  of  the  largest  cities  of  the  United  Kingdom  now  manage  their 
tramways.  Manchester,  Liverpool,  Glasgow.  Birmingham  and  Lon- 
don (the  "County  of  London")  are  among  the  large  cities  which 
own  and  operate  their  tramways. 

In  1893  there  were  only  twenty-eight  street  railway  lines 
aggregating  170  miles,  owned  by  municipalities  in  Great  Britain. 
In  1901  there  w^ere  99  enterprises,  aggregating  689  miles.     During 

(283) 


40  The  Annals  oj  the  American  Academy 

this  period  of  eight  years  there  was  no  increase  in  the  number  of 
private  companies,  and  the  growth  in  mileage  owned  by  private 
companies  was  from  501  to  616  miles.  In  1904  there  were  162 
street  railways  in  Great  Britain  owned  by  cities,  with  1,148  miles 
of  tramways.  The  number  of  private  undertakings  was  150,  with 
a  total  line  mileage  of  692. 

The  tendency  of  the  cities  of  Great  Britain  to  municipalize 
street  railway  transportation  may  be  illustrated  by  referring  to  the 
recent  experience  of  London.  In  accordance  with  the  provisions 
of  the  act  of  1870,  supplemented  by  the  London  County  Tramways 
Act  of  1896,  the  County  of  London  has  acquired  nearly  all  of  the 
surface  tramways  within  the  county  limits.  . 

On  account  of  the  narrow  streets  and  density  of  traffic  the 
mileage  of  surface  railways  or  tramways  within  Greater  London  is 
relatively  small.  In  1903  the  route  or  line  mileage  within  the  County 
of  London,  which  constitutes  the  inner  portion  of  the  area  of  Greater 
London,  was  ii5/^  miles.  This  does  not  include  the  numerous 
subways  and  tubes  now  in  operation.  Of  the  tramway  line  mileage, 
99^  miles,  or  all  but  16^,  the  London  County  Council  has  either 
purchased  or  announced  its  intention  of  purchasing.  In  1903  most 
of  the  tramways  within  the  county  north  of  the  Thames  were  being 
operated  by  a  company  to  which  the  line  had  been  leased  by  the 
London  County  Council.  Since  then  the  operation  of  this  line  has 
been  taken  over  by  the  Council,  and  at  the  present  time  practically 
all  of  the  surface  tramways  within  the  area  of  the  County  of 
London  are  operated  by  the  County  Council.  Within  the  Metro- 
politan, or  Greater  London  district,  and  outside  of  the  County  of 
London,  there  are  numerous  electric  tramways  operated  by  char- 
tered companies ;  but  even  they  are  coming  under  the  ownership 
and  operation  of  public  authority. 

Rapid  transit  in  London  is  supplied  mainly  by  tubes  or  sub- 
ways. At  the  present  time  the  old  Metropolitan  system,  which  is 
part  subway  and  part  open  line,  comprises  35^  miles  of  route  and 
71  miles  of  single  track.  The  six  electric  tubes  now  in  operation 
have  a  route  length  of  30^  miles.  Thus  the  Metropolitan  system 
and  the  tubes  give  London  66%  miles  of  underground  street  rail- 
ways. The  companies  operating  these  underground  lines  derive 
their  charters  from  Parliament  by  private  bills,  and  thus  do  not  come 
directly  under  the  control  of  the  London  County  Council.     They 

(284) 


Street  Railzi'ay  Transportation  41 

are  under  the  control  of  public  authority  and  will,  doubtless,  in  time, 
be  subject  to  regulation  by  the  municipal  government  of  London  as 
well  as  by  the  Royal  Government. 

The  German  System. — Although  Germany  is  a  confederation  of 
several  states,  each  of  which  has  authority  to  determine  the  condi- 
tions under  which  street  railway  companies  may  be  incorporated, 
the  imperial  code  of  1900  establishes  practical  uniformity  among 
the  several  states  as  regards  their  system  of  public  control  of  urban 
transportation.  The  German  system  may  be  summarized  by  stating 
that  it  comprises  (i)  a  detailed  regulation  of  the  service  through 
the  charter  provisions  required  by  the  laws  of  the  states  and  the 
imperial  code,  (2)  the  local  governmental  authorities  have  the 
power  to  grant  or  withhold  franchises  and  also  have  the  power  to 
construct,  purchase  or  operate  the  street  railways,  (3)  both  private 
and  municipal  systems  of  street  railway  management  prevail  in 
Germany.  Some  cities  have  private  street  railway  companies,  other 
cities  own  and  operate  the  lines  within  their  limits.  Some  of  the 
cities  owning  lines  lease  them  to  private  companies ;  but  the  usual 
practice  is  for  the  city  to  operate  the  lines  in  its  possession.  In 
1902  eighteen  of  the  one  hundred  and  thirty-three  German  cities 
owned  the  street  car  systems  within  their  limits.  In  this  list  are 
such  large  cities  as  Dresden,  Munich,  Mayence,  Cologne,  Frankfurt, 
and  Halle. 

In  the  metropolis  of  the  country,  Berlin,  the  agitation  for  the 
municipalization  of  street  railway  transportation  has  thus  far  been 
unsuccessful,  and  the  franchise  of  the  most  important  company 
operating  surface  lines  in  the  city  has  been  extended  until  1949,  the 
city  reserving  the  right  to  purchase  before  the  expiration  of  the 
franchise.  The  elevated  road  extending  through  and  around  the 
city  is  a  part  of  the  Prussian  state  railway  system.  A  new  and 
excellent  underground  and  elevated  road  has  been  put  into  opera- 
tion by  the  great  firm  of  Siemens  &  Halske,  which  company  pays 
the  cities  of  Berlin  and  Charlottenburg  a  liberal  percentage  of  its 
annual  income.  The  annual  percentage  increases  with  the  growth 
of  the  company's  annual  receipts. 

As  in  Great  Britain,  so  in  Germany,  the  tendency  is  distinctly 
towards  the  municipalization  of  the  street  railway  service.  This 
tendency  is  in  accordance  with  the  development  of  state  ownership 
and  management  of  transportation  agencies  in  Germany.     In  Great 

(285) 


42  The  Annals  of  the  American  Academy 

Britain,  however,  there  is  no  apparent  demand  for  the  nationaliza- 
tion of  the  steam  railroads,  and  the  tendency  towards  municipaliza- 
tion of  street  railways  represents  a  departure  from  the  theories 
which  have  in  the  past  prevailed  regarding  the  best  relations  of  the 
government  to  the  transportation  service. 

Comparison  of  Municipal  and  Private  Ozvnership. — In  the 
United  States,  street  railways,  with  the  exception  of  certain  sub- 
ways, are  owned  by  private  companies.  In  Europe,  although  the 
majority  of  the  street  railway  enterprises  are  still  owned  by  corpo- 
rations, the  tendency  is  towards  the  purchase  and  operation  of  the 
tramways  by  city  governments.  The  success  that  has  attended 
municipal  ownership  and  operation  has  been  such  as  to  lead  some 
persons  to  conclude  that  all  cities,  both  European  and  American, 
might  advantageously  adopt  the  policy  of  municipalization  of  the 
street  railway  service. 

In  Great  Britain  the  street  railway  service  during  the  decade 
following  1890  was  generally  unsatisfactory.  This  was  in  part  due 
to  the  fact  that  the  Tramways  Act  of  1870,  by  which  franchises  were 
limited  to  periods  of  twenty-one  years,  foreshadowed  a  policy  of 
municipalization  of  the  private  lines.  When  the  time  came  for 
changing  from  horse  to  electric  traction,  the  private  companies 
generally  neglected  the  service,  with  results  that  are  well  stated  in 
the  following  quotation  taken  from  the  minutes  of  the  Plymouth, 
England,  Town  Council : 

The  main  objects  of  the  corporation  in  purchasing  the  tramways  were 
to  get  rid  of  the  company  management,  which  had  failed  to  give  the  public 
an  effective  tramway  service  and  which  had  exhibited  so  considerable  dis- 
regard of  public  inconvenience  and  remonstrance,  and  in  the  second  place 
the  direction  and  control  of  the  policy  of  the  tramway  extension  in  the  hands 
of  the  council  as  representing  the  general  body  of  ratepayers,  for  the  general 
benefit  of  the  borough,  instead  of  leaving  the  tramway  system  to  be  de- 
veloped and  extended  for  the  purpose  of  securing  profits  to  shareholders 
without  regard  to  local  necessities. 

The  main  advantages  of  municipal  ownership  and  operation 
are: 

(i)  The  possibility  of  low  fares  and  of  adjusting  fares  with 
reference  to  the  most  advantageous  distribution  of  population. 

(2)  The  ability  of  the  city  to  regulate  the  wages  and  hours  of 
labor  of  the  street  railway  employees. 

(286) 


Street  Raihcay  Transportation  43 

(3)  To  secure  to  the  city  the  increasing  profits  resulting  from 
the  growth  of  population  and  traffic. 

Assuming  that  a  municipal  government  is  honest  and  is  able  to 
manage  the  street  railway  service  efficiently,  the  advantages  of 
municipalization  are  manifest.  There  are,  however,  certain  dangers 
connected  with  municipal  ownership  and  operation  even  under 
the  favorable  conditions  prevailing  in  the  cities  of  Western  Europe : 

1.  There  is  the  liability  that  municipal  debts  may  be  greatly 
increased  and  that  the  cities  may  be  so  desirous  of  reducing  street 
railway  fares  as  to  neglect  to  provide  for  the  payment  of  the  rail- 
way debt  within  the  proper  period. 

2.  Writers  opposed  to  municipalization  claim  that  the  city  is 
more  liable  than  private  corporations  are  to  allow  the  track  and 
equipment  to  depreciate,  and  to  neglect  the  construction  of  new 
tracks  extending  the  lines  into  unoccupied  suburban  regions. 

3.  It  is  also  claimed  that  the  municipalization  of  street  rail- 
ways will  restrict  the  construction  of  interurban  electric  lines,  for 
the  reason  that  each  city  will  be  disposed  to  confine  its  lines  to  the 
region  within  its  own  limits,  and  that,  having  done  so,  private  com- 
panies will  not  find  it  profitable  to  construct  lines  connecting  the 
cities. 

European  cities  have  so  recently  adopted  the  policy  of  munic- 
ipalization of  street  railways  that  it  is  too  early  to  determine  what 
their  policy  will  be  as  to  the  payment  of  the  debts  incurred  in  buying 
out  the  corporations  or  in  constructing  new  lines,  or  what  their 
policy  will  be  regarding  the  maintenance  of  their  track  and  equip- 
ment, and  whether  they  will  extend  their  systems  with  adequate 
rapidity.  In  general,  it  may  be  said  that  the  British  and  Continental 
cities  have  thus  far  dealt  satisfactorily  with  these  questions. 
Whether  municipalization  will  hinder  the  construction  of  interurban 
lines  remains  to  be  seen,  but  it  seems  probable  that  this  may  prove 
to  be  a  somewhat  important  consequence  of  numicipalization. 

The  success  that  is  attending  the  purchase  and  operation  of 
street  railways  by  foreign  cities  argues  but  little  for  such  a  policy 
for  American  cities.  The  condition  of  municipal  government  in  the 
United  States  is  such  as  to  discourage  the  ownership  and  operation 
of  street  railways  by  public  authorities  at  the  present  time.  For 
the  United  States  the  policy  for  some  time  to  come  should  be  one 

(287) 


44  The  Annals  of  the  American  Academy 

of  public  regulation  rather  than  one  of  public  ownership  and 
operation. 

The  ^Street  Railway  "Problem"  in  the  United  States. — The 
adjustment  of  the  relations  of  the  public  authority  to  the  street 
railway  transportation  service  is  a  problem  comprising  the  regula- 
tion of  the  provisions  of  the  charter  and  franchise  granted  to  the 
company,  the  regulation  of  the  capitalization  and  financial  methods 
of  the  corporation  performing  the  service,  the  public  supervision  of 
the  service,  the  control  of  the  fares,  and  the  adoption  and  enforce- 
ment of  wise  methods  of  taxation.  This  is  indeed  a  complicated 
problem,  the  solution  of  which  has  been  as  yet  but  partly  accom- 
plished. The  regulation  of  the  franchises,  services  and  charges  of 
street  railways  needs  to  be  more  detailed  than  is  required  in  the  case 
of  steam  railroads,  because  the  street  railway  service  is  more  com- 
pletely monopolistic  than  is  the  business  of  railroad  transportation. 

That  these  facts  necessitate  a  detailed  regulation  of  the  street 
railway  service  is  being  increasingly  recognized  in  the  United  States 
is  shown  by  the  general  tendencies  discernible  in  the  legislation  of 
the  states: 

1.  There  is  a  tendency  to  limit  the  period  for  which  the  fran- 
chises are  granted,  and  to  increase  the  obligations  to  be  met  by  the 
companies  in  order  for  them  to  maintain  the  validity  of  the  fran- 
chises they  receive  from  the  public.  The  states  are  giving  the  cities 
power  to  exact  more  than  they  formerly  could  of  the  street  railway 
companies,  and  the  cities  are  showing  an  increasing  disposition  to 
avail  themselves  of  the  powers  they  have  received  from  the  states, 

2.  The  state  and  municipal  control  over  fares  is  being  more 
frequently  exercised.  In  several  states  and  in  numerous  cities  efforts 
are  being  made  to  establish  an  effective  public  regulation  of  street 
railway  charges.  These  efforts  indicate  more  clearly  than  any  other 
movement  could  the  tendency  towards  a  greater  exercise  of  public 
authority. 

3.  There  is  a  growing  disposition  to  tax  the  franchises,  and 
earnings  of  street  railway  companies  as  well  as  their  physical  prop- 
ertv.  The  fact  is  coming  to  be  recognized  that  taxation  levied  only 
on  the  physical  property  of  street  railway  companies  reaches  but  a 
small  part  of  the  value  possessed  by  the  companies,  and  that  an 
adequate  system  of  taxation  necessitates  the  taxation  either  of  the 
franchises  or  of  the  earnings  of  the  companies.     Moreover,   the 

(288) 


Street  Raihvay  Transportation  45 

legal  limitations  ordinarily  placed  upon  property  taxation — that  all 
kinds  of  property  shall  be  taxed  equally — presents  another  reason 
for  adopting  some  other  basis  than  physical  property  for  the  assess- 
ment of  street  railway  companies.  In  some  states  the  value  of  the 
street  railway  franchise  is  reached  for  purposes  of  taxation  by 
treating  the  franchises  as  property  and  thus  avoiding  the  restrictions 
of  the  laws  regarding  taxation  of  all  physical  property.  The  most 
convenient  and,  on  the  whole,  the  most  practicable  method  of  taxing 
street  railway  companies  is  that  of  requiring  them  to  turn  over  to 
the  city  annually  a  liberal  percentage  of  their  gross  receipts.  While 
the  gross  receipts  tax  is  not  theoretically  the  most  ideal  one,  the 
objections  to  it  are  not  important  in  the  case  of  the  street  railway 
business,  and  its  advantages  outweigh  the  theoretical  objections. 

The  present  thought  regarding  the  proper  solution  of  the  street 
railway  problem  in  the  United  States  may  be  approximately  sum- 
marized as  follows : 

(i)  A  five-cent  fare,  with  six  tickets  for  a  quarter,  and  a 
general  system  of  transfers;  (2)  that  the  service  shall  be  performed 
by  chartered  companies,  but  that  each  company  shall  pay  to  the 
city  a  percentage  of  its  gross  receipts  and  be  required  to  pave  and 
sprinkle  the  parts  of  the  streets  occupied  by  its  tracks;  (3)  that 
capitalization  of  the  company  shall  be  regulated  by  public  authority 
and  over-capitalization  prohibited;  (4)  that  franchises  shall  be 
limited  to  twenty  or  thirty  years,  and  that  the  city  should  retain 
the  right  to  purchase  at  the  expiration  of  this  period  the  property 
of  the  company  at  a  fair  valuation;  (5)  that  a  commission  or  some 
other  public  authority  shall  pass  upon  the  public  necessity  for  a 
proposed  street  railway,  and  regulate  the  service  in  the  public 
interest;  (6)  that  the  annual  reports  made  to  the  state  and  city 
shall  give  full  information  regarding  both  the  service  and  finances 
of  the  company. 

The  general  problem  of  the  public  regulation  of  street  rail- 
ways has  been  simplified  both  by  the  consolidations  that  have 
brought  the  street  railways  systems  in  each  of  most  of  our  large 
cities  under  a  single  control,  and  by  the  recognition  on  the  part  of 
the  public  of  the  fact  that  the  street  railway  service  is  a  monopoly 
and  must  be  regulated  as  such.  The  fact  that  the  street  railway 
service  is  a  monopoly  not  only  necessitates  public  regulation,  but 
makes  possible  more  efficient  public  control.     The  truth  of  this  is 

(289) 


46  The  Annals  of  the  American  Academy 

well  illustrated  in  Boston,  where  all  the  lines,  elevated,  surface  and 
subway,  are  operated  by  a  single  company.  Over-capitalization  has 
been  prevented,  the  fares  are  being  regulated,  and  different  parts 
of  the  street  railway  systems  are  co-ordinated  so  as  to  secure  a  good 
service  in  a  city  where  the  difficulties  of  providing  street  railway 
transportation  were  exceptional.  What  Massachusetts  and  Boston 
have  done  other  states  and  cities  can,  and  doubtless  will  do.  Indeed, 
hopeful  progress  is  being  made  in  several  states,  and  the  successful 
solution  of  the  "street  railway  problem"  in  the  United  States  by 
public  regulation  rather  than  by  municipalization  seems  more  than 
probable. 

Selected  References. 

"The  Relations  between  Cities  and  Towns  and   Street  Railway  Companies." 

Report    of   the   special   committee   of   the    State    of   Massachusetts,    1898. 

(This   report   contains    an   excellent    discussion   of   the   theory   of   public 

control  and  gives  a  summary  of  the  laws  of  several  of  our  states  and  of 

leading  European  countries.) 
■"Chicago  Street  Railways."    By  Milo  Roy  Maltbie,  1901. 
"Municipal  Afifairs,"  Volume  IV,  No.  i,  1900,  and  Volume  VI,  No.  4,  1902-03. 

(The  papers  in  Volume  VI,  No.  4,  of  "Municipal  Affairs"  are  especially 

valuable.) 
"The  Present  Street  Railway  System  in  Chicago."    By  H.  A.  Millis.    Annals. 

Volume  XX,  September,  1902. 
"Street    and    Electric    Railways,"    1902.      Bureau    of    the    Census.      Special 

Reports.     Department  of  Commerce  and  Labor,  Washington,  1905. 
"Municipal   Ownership  in   Great   Britain."     By  Frederic   C.   Howe.     Bulletin 

of  the  Bureau  of  Labor,  Department  of  Commerce  and  Labor,   No.  62, 

January,  1906. 
"Glasgow's    Experience    with    Municipal    Ownership    and    Operation."      By 

Robert  Crawford.     Ann.\ls,  January.  1906. 
"Municipal  Ownership  and  Operation  of  Street  Railways  in  Germany."     By 

L.  S.  Rowe.     Ibid. 
"Transportation  Facilities  and  Street  Railway  Traffic  in  London."     By  Lynden 

Macassey.     Ibid. 
"The  Movement  for  Municipal  Ownership  in  Chicago."  By  Hugo  S.  Grosser. 

Ibid. 
"Street  Railway  Franchises  in  Massachusetts."     By  Walter  S.  Allen.     Ibid. 
"The  Gas,  Electric  Light,  Water,  and  Street  Railway  Services  in  New  York 

City."     By  Robert  Grier  Monroe.     Ibid. 
"Chicago  Traction:    A  Study  in  Political  Evolution"     By  Willard  E.  Hotch- 

kiss.    Annals,  November,  1906. 
"Report  of  the  Royal  Commission  on  London  Traffic,   1905"      (The  report 

comprises  seven  volumes,  the  first  volume  containing  the  report  prepared 

(290) 


Street  Railway  Transportation  47 

by  the  commission,  the  other  six  vokimes  being  devoted  to  minutes  of 
evidence  and  appendices.  These  seven  vohmies  constitute  a  rich  mine 
of  information  regarding  the  tramway  systems  of  England,  the  United 
States  and  the  Continent  of  Europe,  and  deal  fully  both  with  the  technical 
questions  and  with  the  various  systems  of  public  control  of  street  railway 
transportation.) 


RATE  CONTROL  UNDER  THE  AMENDED  INTERSTATE 
COMMERCE  ACT 


By  Harrison  Standish  Smalley,  Ph.D., 

University  of  Michigan,  Ann  Arbor,  Mich. 


Under  the  Interstate  Commerce  Act,  as  originally  passed  in 
1887,  the  Commission  assumed  that  it  possessed  the  power  to  pre- 
scribe rates  for  railroad  companies.  In  1896  and  1897,  however, 
the  Supreme  Court  rendered  decisions^  denying  this  power  and 
announcing  that  while  the  commission  might  declare  existing 
rates  unreasonable,  it  was  not  empowered  by  the  act  to  substitute 
other  rates  to  be  observed  in  future.  Thus  shorn  of  its  authority, 
the  commission  appealed  to  Congress  for  a  restoration  of  it,  and,  as 
the  years  passed  by,  repeatedly  renewed  its  petition.  For  several 
years,  however.  Congress  steadfastly  turned  a  deaf  ear  to  its  prayers, 
until  public  opinion,  awakened  largely  by  the  President,  came  to 
the  aid  of  the  commission.  By  1904  there  had  been  manifested  an 
impressive  public  sentiment  in  favor  of  railroad  reform,  and  under 
this  stress  the  Esch-Townsend  bill  achieved  a  remarkable  success  in 
the  house.  But  the  senate  compassed  its  downfall.  Nevertheless, 
during  the  succeeding  months,  popular  sentiment  continued  to  grow, 
and  in  consequence,  when  the  members  of  Congress  next  assembled, 
in  December  of  1905,  it  was  generally  agreed  among  them  that 
railroad  legislation  of  some  sort  would  have  to  be  enacted.  More- 
over, it  was  almost  as  generally  acknowledged  that  one  feature  of 
the  legislation  would  have  to  be  a  grant  of  the  rate-making  power 
to  the  Interstate  Commerce  Commission. 

But  the  recognition  that  this  step  was  practically  inevitable  did 
not  altogether  do  away  with  consideration  of  its  general  policy. 
Especially,  at  first,  was  much  oratory  devoted  to  its  constitutional 
features.  But  all  such  discussion  speedily  dwindled  in  importance, 
and  it  was  soon  recognized  that  the  significant  feature  of  the  Con- 
gressional task  was  the  formulation  of  the  various  specific  pro- 
visions of  the  law.     Granted  that  the  commission  should  have  the 

1162  U.  S.   184,  and   167  U.   S.  479. 

(292) 


Rate  Control 


49 


rate-making  power,  the  real  struggle  was  involved  in  the  deter- 
mination of  the  character  and  limitations  of  that  authority.  In  this 
connection  several  important  questions  arose,  and  the  earnest  debates 
upon  them  revealed  a  wide  difference  of  opinion  between  the  extreme 
conservatives  and  the  extreme  radicals.  Untimately,  however,  a 
compromise  was  reached  on  each  point,  and  at  the  eleventh  hour 
the  bill  was  passed  and  became  a  law. 

The  more  important  of  the  questions  which  presented  them- 
selves to  Congress  pertained  to  the  following  matters:  (i)  The 
rates  which  should  be  made  subject  to  the  commission ;  (2)  the  cir- 
cumstances under  which  the  commission  should  be  authorized  to 
prescribe  rates;  (3)  the  character  of  the  rates  thus  established; 
(4)  the  review  of  these  rates  by  the  courts;  (5)  the  expedients 
which  should  be  adopted  to  mitigate  the  evils  resulting  from  judicial 
review ;  and  (6)  the  penalties  to  be  imposed  for  the  violation  of  the 
commission's  orders  establishing  rates.  It  is  the  purpose  of  this 
article  to  discuss  the  manner  in  which  these  subjects  are  treated  in 
the  Interstate  Commerce  Act  as  now  amended. 

I.  The  Rates  Subject  to  the  Commission. — To  begin  with,  the 
rate-making  power  of  the  commission  applies  to  all  common  carriers 
by  rail,  or  by  both  rail  and  water,  when  both  are  under  common 
control  or  management,  or  arrangement  for  a  continuous  carriage. 
It  also  applies  to  express  companies,  sleeping  car  companies,  and 
all  corporations  or  persons  operating  pipe  lines,^  the  insertion  of 
these  provisions  being  the  outcome  of  extended  discussion  in  Con- 
gress. The  power  extends  to  all  rates  not  purely  intrastate,  whether 
charged  for  the  transportation  of  persons  or  property,  and  it  is 
clearly  the  design  of  the  act  that  the  charges  for  all  services  ren- 
dered in  connection  with  such  transportation  shall  be  under  the 
control  of  the  commission.  Many  elements  to  be  regarded  as 
included  in  the  term  "transportation"  are  enumerated  in  the  first 
section,  and  it  is  interesting  to  note  that  they  embrace,  among  other 
things,  "all  services  in  connection  with  the  receipt,  delivery,  eleva- 
tion, and  transfer  in  transit,  ventilation,  refrigeration  or  icing, 
storage  and  handling  of  property  transported."  The  commission  is 
also  granted  a  limited  authority  over  joint  rates.  When  two  or 
more  connecting  carriers,  one  of  whom  may  be  a  carrier  by  water, 
have  failed  to  establish  through  routes  and  joint  rates,  and  no 
*Other  than  for  the  transportation  of  water  and  natural  or  artificial  gas. 

(293) 


50  The  Annals  of  the  American  Academy 

reasonable  or  satisfactory  through  routes  exist,  the  commission 
may,  on  complaint,  establish  such  through  routes  and  prescribe  the 
rates  applicable  thereto.  Finally,  the  power  of  the  commission 
covers  the  allowances  made  by  carriers  to  shippers  who  directly  or 
indirectly  render  any  service  in  connection  with  the  transportation 
of  their  goods,  this  provision  being  designed  to  remedy  a  familiar 
form  of  discrimination.  Thus  it  will  be  seen  that  a  very  compre- 
hensive authority  is  accorded  the  commission,  its  one  weakness, 
probably,  being  a  lack  of  power  over  transportation  exclusively  by 
water. 

2.  When  Rates  May  be  Made. — A  second  matter  of  importance 
has  reference  to  the  circumstances  under  which  the  commission  may 
establish  rates.  In  determining  this  question  three  alternatives  were 
open  to  Congress.  The  commission  might  be  required  to  wait  until 
complaints  of  unreasonable  rates  were  brought  to  it  before  it  could 
move  in  the  matter  of  rate-making.  Such  a  provision  would  give 
it  something  of  the  character  of  a  court,  which  cannot  seek  cases 
to  decide,  but  must  wait  until  the  parties  voluntarily  institute  pro- 
ceedings. Or,  secondly,  the  commission  might  be  empowered  to 
take  the  initiative  in  the  matter,  establishing  rates  on  its  own  motion, 
though,  of  course,  after  proper  investigation  and  hearing.  Or, 
thirdly,  it  might  be  given,  practically  if  not  nominally,  the  status  of 
chief  traffic  manager  for  the  various  railroad  companies.  While, 
in  such  a  case,  the  entire  work  of  rate-making  would  not  be  placed 
in  its  hands,  the  final  authority  and  responsibility  would  be  lodged 
there.  Of  these  three  forms  of  rate  control.  Congress  elected  to 
adopt  the  mildest.  The  commission  is  empowered  to  act  only  upon 
complaint ;  it  cannot  take  the  initiative.  Such  a  limited  power,  of 
course,  gives  rise  to  a  serious  difficulty.  The  establishment  of  cer- 
tain rates,  following  a  complaint,  may  render  highly  desirable  the 
readjustment  of  other  related  rates ;  yet  the  commission  is  without 
authority  to  touch  them,  until  and  unless  a  complaint  is  filed.  There 
is,  however,  another  provision  of  the  act  which  opens  an  avenue 
of  escape  from  this  difficulty.  It  is  provided  that  "no  complaint 
shall  at  any  time  be  dismissed  because  of  the  absence  of  direct 
damage  to  the  complainant."  Thus  it  is  possible  for  the  commis- 
sion, if  it  desires  to  investigate  rates,  to  set  up  dummies  to  bring 
the  formal  complaints  demanded  by  the  act.  This  is,  of  course,  a 
nuisance,  and  may  involve  some  small  sacrifice  of  official  dignity, 

(294) 


Rate  Control  51 

but  aside  from  these  embarrassments  the  commission  is  as  much  at 
Uberty  to  investigate  rates  as  if  the  right  of  initiative  had  been 
granted  to  it. 

3.  The  Character  of  the  Rates. — Two  things  may  be  said  as  to 
the  character  of  the  rates  to  be  estabhshed  by  the  commission. 
First,  they  are  to  be  merely  the  tnaximuDi.  No  power  is  given  to 
fix  an  absolute  rate,  or  to  prescribe  a  minimum  charge.  Of  course 
a  maximum  rate  is  to  a  limited  extent  a  minimum  rate  as  well, 
inasmuch  as  many  reductions  from  it  can  be  assailed  as  unjustly 
discriminatory,  and  so  can  be  prevented ;  but  obviously  this  is  not 
true  of  all  reductions.  Hence  it  is  thought  by  many  that  the  failure 
of  the  act  to  provide  for  minimum  rates  is  unfortunate,  especially 
because  it  may  impair  the  enforcement  of  differentials  by  the  com- 
mission. It  must  be  confessed,  however,  that  the  establishment  of  a 
minimum  rate  appears  to  be  beyond  the  powers  of  Congress. 
Though  this  question  has  never  been  judicially  determined,  and  so 
must  be  regarded  as  somewhat  uncertain,  little  doubt  remains  after 
a  consideration  of  the  following  facts.  The  Supreme  Court  has 
come  just  short  of  deciding  that  the  power  of  the  states  is  limited 
to  the  fixing  of  maximum  rates.  The  point  has  never  been  directly 
at  issue  before  the  court,  and  so  an  absolutely  final  dictum  has  not 
been  given ;  but  repeatedly,  from  the  earliest  cases  to  the  present 
time,  the  court,  in  asserting  the  states'  power  over  rates,  has  defined 
it  as  an  authority  to  fix  a  maximum.  The  court  has  never  posi- 
tively stated  that  a  minimum  is  beyond  the  states'  power,  because 
it  has  never  had  occasion  to  decide  the  question,  but  its  constant 
employment  of  "maximum"  or  other  words  of  like  import  in  defining 
that  power  is  all  but  conclusive  on  the  point.  This  being  true,  the 
thought  naturally  occurs  that  if  the  people  of  the  several  states  do 
not  possess  the  right  to  fix  a  minimum  rate,  they  could  hardly  have 
conferred  that  right  upon  Congress.  However,  in  spite  of  this  con- 
sideration, it  is  regarded  as  unfortunate  that  Congress  did  not  in 
the  act  provide  for  a  minimum  rate.  The  point  would  then  come 
up  for  judicial  interpretation  and  would  be  settled.  Even  were  the 
provision  declared  to  be  beyond  the  competence  of  Congress,  its 
rejection  would  not  impair  the  validity  of  the  balance  of  the  act ; 
and  were  it  sustained  it  would  doubtless  strengthen  the  hands  of  the 
commission. 

A  second  provision  as  to   the  character  of  the   commission's 

(295) 


22  The  Aiuials  of  the  ^liiicrican  Academy 

rates  is  that  they  shall  be  just  and  reasonable,  but  the  discussion  of 
this  requirement  will  be  undertaken  under  our  next  head. 

4.  Judicial  Revieiv. — Of  all  the  questions  which  presented 
themselves  to  Congress,  none  matched  in  importance  that  which 
pertained  to  the  review  by  the  courts  of  rates  prescribed  by  the 
commission.  It  was  generally  recognized  that  upon  the  answer  to 
this  question,  more  than  upon  anything  else,  depended  the  effective- 
ness of  the  provision  for  rate  regulation.  For  the  purpose  of 
judicial  review  is  to  determine  whether,  in  prescribing  rates,  the 
commission  has  exceeded  its  powers,  and  to  restrain  its  action  if 
such  has  been  the  case.  The  inquiry  of  the  courts  may  take  dif- 
ferent directions.  It  may  be  designed  to  discover  whether  the 
charges  which  have  been  regulated  are  among  those  subject  to  the 
commission,  or  whether  that  board  has  complied  with  the  require- 
ments of  the  act  as  to  its  procedure  in  the  investigation  and  estab- 
lishment of  rates ;  but  by  all  means  the  mos"t  important  specific  aim 
of  judicial  review  is  to  determine  whether  the  rates  prescribed  by 
the  commission  are  unduly  low,  and  if  they  are,  to  restrain  their 
enforcement.  Were  the  courts  to  possess  no  right  of  review  there 
would  be  no  limit  to  the  commission's  power  of  rate  reduction, 
except  its  own  discretion.  It  might  reduce  rates  to  zero.  Judicial 
review,  then,  is  a  restraint  upon  the  commission's  power  of  rate 
control,  and  the  broader  that  review,  the  more  circumscribed  is  the 
authority  of  the  commission.  This  is  why  the  question  was  acknowl- 
edged to  be  the  very  heart  of  the  whole  problem.  Though  the  rate- 
making  power  might  be  granted  in  terms,  it  might  be  practically 
nullified  by  conferring  upon  the  courts  a  very  broad  right  of  review. 
In  any  case,  the  strength  of  the  commission  would  largely  depend 
upon  the  character  of  the  provision  for  judicial  review. 

Doubtless  the  simplest  plan  would  have  been  to  say  nothing  at 
all  upon  the  subject  in  the  act,  and  this  suggestion  was  not  without 
its  advocates.  But  it  was  vigorously  opposed  by  the  representatives 
of  the  railroad  interests,  together  with  other  conservatives,  who 
expressed  the  fear  that  if  the  act  were  silent  on  the  matter  it  might 
be  declared  unconstitutional,  as  denying  the  right  of  review  to  the 
courts.  Most  persons,  however,  were  not  affected  by  this  appre- 
hension. It  was  evident  to  them  that  the  courts  needed  no  authori- 
zation from  Congress  to  review  the  commission's  rates ;  that  the 
constitution   itself   confers   that  right.     The   constitution   not   only 

(296) 


Rate  Control  53 

bestows  upon  Congress  the  power  to  regulate  commerce,  but  it  also 
provides,  as  a  limitation  upon  the  federal  government,  that  no  per- 
son shall  be  deprived  of  property  without  due  process  of  law  and 
without  just  compensation.  Beyond  a  doubt,  then,  the  courts  would 
not  permit  rates  made  by  Congressional  authority,  under  the  com- 
merce clause,  to  be  enforced,  if  they  contravened  that  other  and 
more  recently  adopted  provision  regarding  deprivation  of  property. 
Congress  cannot,  under  the  guise  of  legislating  in  pursuance  of  one 
clause,  violate  another,  especially  a  more  recently  adopted  pro- 
vision. As  the  guardians  of  the  constitution,  the  courts  would  be 
abundantly  competent  to  pass  upon  the  constitutionality  of  rates 
made  by  the  commission,  and  so,  without  any  provision  in  the  act, 
the  commission's  rates  would  be  subject  to  judicial  review. 

But  though  this  seemed  clear,  the  reform  element  in  Congress 
was  not  in  a  position  to  insist  upon  the  silence  of  the  act,  for  such 
insistence  might  cast  suspicion  upon  their  good  faith.  If  they 
believed  that  judicial  review  ought  to  exist,  what  objection  could 
they  have  to  saying  so  in  the  act?  Therefore  it  was  conceded  that 
some  provision  on  the  subject  should  be  enacted. 

That  being  settled,  the  next  step  was  to  formulate  the  pro- 
vision, and  this  involved  the  determination  of  the  power  which 
should  be  conceded  to  the  courts,  and,  conversely,  to  the  commis- 
sion. Obviously  here,  again,  two  courses  were  open.  The  act 
might  simply  state  that  the  courts  should  be  competent  to  pass  upon 
the  constitutionality  of  the  rates ;  or,  it  might  give  them  a  broader 
right  of  review.  To  put  it  otherwise,  the  act  might  simply  aim  to 
protect  the  railroads  in  the  enjoyment  of  their  constitutional  rights., 
or  it  might  confer  on  them  additional  rights,  and  charge  the  courts 
with  the  duty  of  protecting  them.  In  the  former  case  the  commis- 
sion would  possess  just  the  same  power  over  interstate  rates  that 
state  commissions  have  over  local  tariffs ;  in  the  latter,  it  would 
have  a  more  limited  authority. 

The  natural  course  would  have  been  to  adopt  the  former  alter- 
native, confining  the  courts  to  an  adjudication  of  the  constitutional 
question ;  but  the  conservative  element,  inspired  by  its  late  victory, 
felt  emboldened  to  stand  out  for  a  broader  right  of  review,  with 
the  purpose  of  weakening  the  commission's  efficiency.  The  result 
was  a  struggle  which  lasted  until  late  in  June,  when  it  was  termi- 
nated by  a  compromise.     The  curious  feature  of  this  compromise 

(297) 


54  The  Annals  of  the  American  Academy 

is  that  no  one  can  be  absolutely  sure  of  its  meaning.  The  wording 
of  the  act  as  it  now  stands  is  to  some  extent  indefinite  and  ambigu- 
ous, and  not  until  a  case  has  been  passed  upon  by  the  Supreme 
Court  will  its  meaning  be  surely  known.  At  this  time  all  that  can 
be  done  is  to  call  attention  to  the  various  clauses  of  the  act  bearing 
upon  the  question,  and  to  indicate  some  of  the  considerations  to 
which  weight  will  doubtless  be  attached  by  the  court. 

The  clause  which  confers  the  power  of  review  is  as  follows: 

The  venue  of  suits  brought  in  any  of  the  circuit  courts  of  the  United 
States  against  the  commission  to  enjoin,  set  aside,  annul,  or  suspend  any 
order  or  requirement  of  the  commission  shall  be  in  the  district  where  the 
carrier  against  whom  such  order  or  requirement  may  have  been  made  has  its 
'principal  operating  office,  and  may  be  brought  at  any  time  after  such  order  is 
promulgated.  And  if  the  order  or  requirement  has  been  made  against  two 
or  more  carriers  then  in  the  district  where  any  one  of  said  carriers  has  its 
principal  operating  office,  and  if  the  carrier  has  its  principal  operating  office 
in  the  District  of  Columbia  then  the  venue  shall  be  in  the  district  where  said 
carrier  has  its  principal  office;  and  jurisdiction  to  hear  and  determine  such 
suits  is  hereby  vested  in  such  courts. 

It  will  be  seen  that  this  clause  is  wholly  indefinite.  It  vests  in 
the  circuit  courts  the  power  to  hear  and  determine  suits  to  set  aside, 
annul,  or  suspend  any  order  of  the  commission,  but  it  says  nothing 
as  to  the  ground  on  which  the  courts  can  set  aside  the  commission's 
rates.  May  they  annul  them  on  the  ground  of  unconstitutionality 
alone,  or  on  some  other  ground  ?  To  this  question  no  direct  answer 
is  given,  and  therefore  the  various  provisions  of  the  act  must  be 
scrutinized  to  see  if  they  reveal  the  Congressional  intent.  Power  to 
judge  of  the  constitutionality  of  the  rates  is  surely  in  the  hands  of 
the  courts,  but  if  they  possess  any  other  or  broader  power,  it  must 
be  because  the  act  confers  it  upon  them. 

Looking  into  this  question,  we  find  several  clauses  in  the 
amended  act  which  seem  to  bear  upon  it.  One,  found  in  the  first 
section,  simply  repeats  with  a  slight  modification  a  provision  in  the 
original  act.  It  is  the  general,  sweeping  declaration  that  all  rates 
and  charges  "shall  be  just  and  reasonable;  and  every  unjust  and 
unreasonable  charge  ...  is  prohibited  and  declared  to  be 
unlawful." 

Another  clause  of  importance  in  this  connection  is  found  in 
section  15,  where  the  rate-making  power  is  conferred  on  the  com- 
mission.    "The  commission  is  authorized  and   empowered,   and  it 

(298) 


Rate  Control  55 

shall  be  its  duty  ...  to  determine  and  prescribe  what  will  be 
the  just  and  reasonable  rate  or  rates,  charge  or  charges  to  be  there- 
after observed."  And  later  in  the  same  section  the  commission  is 
authorized  to  "determine  what  is  a  reasonable  charge"  to  be  paid 
by  a  carrier  to  a  shipper  who  renders  some  service  in  connection 
with  the  transportation  of  his  goods. 

It  is  evident  from  these  citations  that  Congress  intends  all  rates 
to  be  reasonable.  Even  the  commission  is  placed  under  the  duty  of 
prescribing  "what  will  be  the  just  and  reasonable  rate  or  rates." 
This  being  true,  the  question  of  the  interpretation  which  the  courts 
will  give  to  this  requirement  becomes  a  matter  of  great  moment. 
How  will  they  undertake  to  determine  whether  rates  are  reasonable 
or  not?    By  what  standards  will  they  judge  them? 

The  word  "reasonable"  is  the  despair  of  the  layman,  and 
surely  can  be  scarcely  less  distressing  to  the  members  of  the  legal 
profession.  The  multitude  of  considerations — ethical,  economic, 
social  and  political,  as  well  as  strictly  legal — which  must.be  taken 
into  account  in  discovering  what  is  reasonable  in  any  connection, 
together  with  scarcity  of  guiding  principles  general  enough  to  be 
true,  yet  concrete  enough  to  be  useful,  conspire  to  make  the  task 
one  of  greatest  difficulty.  The  reasonableness  of  railroad  rates 
furnishes  no  exception  to  this  rule.  Yet  amid  all  the  confusion  of 
infinite  detail  one  fact  is  clear.  There  are  but  two  avenues  along 
which  the  courts  have  ever  attempted  to  proceed  in  judging  of  the 
reasonableness  of  rates.  There  are,  in  other  words,  but  two  judicial 
tests  of  reasonableness.  One  may  be  termed  the  test  of  "constitu- 
tionality," and  the  other  the  test  of  "remuneration."  The  principles 
and  methods  according  to  which  these  tests  should  be  applied  are 
at  present  involved  in  much  uncertainty,  but  the  tests  themselves 
may  nevertheless  be  clearly  distinguished. 

The  constitutional  test  has  been  repeatedly  applied  in  cases 
involving  rates  made  by  state  legislatures  and  commissions,  and  so 
its  general  nature  is  well  understood.  Its  aim  is  to  discover  whether 
the  rates  are  of  such  a  character  as  to  violate  the  Federal  Constitu- 
tion, for  if  they  are,  they  must  be  held  to  be  unreasonable.  The 
precise  question  which  arises  relates  to  the  Fourteenth  Amendment, 
which  provides  that  no  person  shall  be  deprived  of  property  without 
due  process  of  law.  The  term  "due  process  of  law,"  as  interpreted 
by  the  courts,  embraces  more  than  the  mere  formal  proceedings 

(299) 


S6  The  Annals  uf  the  American  Academy 

characteristic  of  a  tribunal  of  justice.  In  it  is  included  the  further 
idea  of  "just  compensation."  Due  process  of  law  is  not  observed 
in  the  appropriation  of  private  property  by  the  state  unless  the 
owner  is  adequately  recompensed,  and  this,  indeed,  is  the  most  sig- 
nificant element  in  "due  process."  In  judging,  then,  of  the  con- 
stitutionality of  rates,  the  courts  must  determine  whether  the  state, 
without  providing  for  compensation,  has  imposed  rates  which  are 
so  low  as  to  deprive  the  railroads  of  property. 

But  how  is  it  that  rates  may  "deprive  of  property?"  Clearly 
they  cannot  operate  in  such  a  manner  as  to  appropriate  any  of  the 
tangible  property  of  a  railroad  company.  But  the  courts  hold  that 
under  the  Fourteenth  Amendment  a  person  is  entitled  to  protection 
against  the  seizure,  without  compensation,  not  only  of  his  property, 
but  of  its  fruits  as  well,  which  in  the  eyes  of  the  law  are  property. 
Hence  a  railroad  company,  though  subject  to  public  control  of  its 
rates,  is  constitutionally  entitled  to  a  reasonable  income  from  its 
business,  and  the  imposition  of  rates  which  are  so  low  as  to  prevent 
it  from  earning  such  an  income  amounts  to  a  deprivation  of  its 
property. 

At  this  point  the  judicial  doctrine  is  confronted  by  another 
difificulty.  What  is  a  reasonable  income  from  a  railroad's  business? 
It  will  not  promote  our  present  purpose  to  inquire  into  this  question 
in  detail.  It  will  be  sufficient  to  observe  that  the  courts  have  decided 
that  no  definite  rate  of  net  income  can  be  stated ;  that  it  must  vary 
with  the  circumstances  of  each  case ;  that  in  an  extreme  case  it 
might  even  be  equal  to  zero ;  and  that,  whatever  the  rate  is,  it  must 
be  reckoned  on  the  actual  value  of  the  property,  rather  than  on  its 
original  value,  on  the  company's  capitalization,  or  on  any  other 
base.  Beyond  this  we  shall  not  go,^  for  it  is  desired  simply  to  make 
clear  the  nature  of  the  "constitutional  test."  Whether  rates  are 
reasonable  depends  on  whether  they  are  high  enough  to  permit  the 
railroad  company  to  earn  a  reasonable  income  from  its  business. 
The  rates  are  judged  according  to  their  efifect  upon  the  net  returns 
of  the  business. 

Now  the  "test  of  remuneration"  must  be  sharply  distinguished 
from  this.     It  is  not  concerned   with   the   company's   income,  but 

^For  a  full  discussion  of  the  principles  and  methods  of  the  courts  in  apply 
Ing  this  test  of  constitutionality,  see  the  author's  "Railroad  Rate  Control  in  its 
Legal  Aspects,"  Publications  of  the  American  Economic  Association,  May,  190G. 

(300) 


Rate  Control  57 

rather  with  the  separate  services  rendered  by  the  company  to  its 
patrons.  Its  aim  is  to  secure  for  the  railroad  a  reasonable  re- 
muneration for  each  service  rendered.  Of  course  the  difficulty 
arises  of  determining  what  a  "reasonable"  remuneration  is,  and  into 
that  question  we  cannot  go,  save  to  remark  that  it  is  to  be  deter- 
mined, among  other  things,  by  the  nature  and  cost  of  the  service, 
and  by  its  importance  and  value  to  the  shipper,  the  customary  rate, 
if  there  is  one,  being  strong  evidence  of  what  is  reasonable.  The 
validity  of  the  rates,  then,  under  this  test,  is  a  matter  of  their  rela- 
tion to  the  services  rendered  by  the  company,  which  is  entitled  to  a 
just  compensation  for  each  service.  Now,  of  course,  it  can  be 
imagined  that  according  to  this  standard  rates  might  be  recognized 
as  reasonable,  though  so  low  as  not  to  yield  a  reasonable  income, 
and  that  consequently  this  might  not  be  so  favorable  to  the  railroad 
as  the  constitutional  test.  But  while  such  a  case  is  conceivable,  it 
is  highly  improbable.  It  is  much  more  likely  that  the  remuneration 
test  would  prove  more  favorable ;  that  under  it  rates  held  to  be  but 
barely  reasonable  would  yield  a  large  income.  In  the  words  of  Mr. 
Justice  Brewer,*  if  a  carrier  "has  a  thousand  transactions  a  day  and 
his  charges  in  each  are  but  a  reasonable  compensation  for  the 
benefit  received  by  the  party  dealing  with  him,  such  charges  do  not 
become  unreasonable  because  by  reason  of  the  multitude  [of  his 
transactions]  the  aggregate  of  his  profits  is  large." 

At  this  point  an  inquiry  is  natural.  How  do  the  courts  use 
these  two  tests  of  reasonableness?  When  do  they  apply  one  and 
when  the  other?  As  already  intimated,  they  employ  the  constitu- 
tional test  in  cases  where  rates  are  involved  which  have  been  made 
by  public  authority.  They  employ  the  other  in  cases  where  no 
government  interference  has  occurred,  but  where  there  is  simply  a 
dispute  between  the  road  and  an  individual  shipper.  By  the  com- 
mon law  a  common  carrier  is  entitled  to  a  reasonable  compensation 
for  each  service,  and  if  sued  by  a  shipper  for  overcharge,  this  is  the 
point  considered  by  the  courts  in  determining  whether  there  has 
been  an  excessive  exaction.  One  test,  therefore,  is  used  in  cases 
of  government-made  rates:  the  other  in  private  disputes  as  to  the 
fairness  of  charges,  in  the  absence  of  governmental  regulation. 

Still  another  distinction  in  the  use  of  these  two  tests  was 
suggested   by   Mr.   Justice   Brewer   some   five   years   ago.     In   his 

*In  Cottlng  V.  Kansas  City  Stock  Yards  Co.,  183  U.   S.  79,  95. 

(301) 


58  The  Annals  of  the  American  Academy 

opinion,  in  Cotting  v.  Kansas  City  Stock  Yards  Company,"^  he  called 
attention  to  the  fact  that  there  are  two  classes  of  industries  subject 
to  public  control  of  their  rates — those  which  are  public,  and  those 
which,  though  private  in  nature,  have  become  so  "affected  with  a 
public  interest"  as  to  be  fit  subjects  for  such  regulation.  He  then 
questioned  whether  the  legislature  should  be  allowed  to  go  so  far 
in  controlling  charges  in  private  business  as  in  public,  and  expressed 
the  conviction  that  it  should  not;  that  while  a  public  business  is 
entitled,  in  spite  of  legislative  enactments,  to  no  more  than  rates 
high  enough  to  yield  a  reasonable  income,  a  private  business  should 
be  allowed  to  collect  a  reasonable  charge  for  each  service,  though 
the  resultant  earnings  might  be  great.  In  short,  he  advocated  the 
application  of  the  constitutional  test  to  public  business,  and  of  the 
remuneration  test  to  private  business.® 

We  are  now  prepared  to  note  the  consequences  that  would  flow 
from  the  adoption  by  the  courts  of  either  of  these  tests  in  judging 
of  the  reasonableness  of  rates  made  by  the  Interstate  Commerce 
Commission.  Were  the  constitutional  test  to  be  applied,  the  com- 
mission would  have  just  the  same  power  over  rates  that  any  state 
commission  may  have,  and  no  more;  but  were  the  remuneration 
test  to  be  employed,  its  authority  would  be  more  narrowly  limited. 
It  could  go  no  farther  than  the  common  law  itself.  The  railroads 
would  be  entitled  to  rates  just  as  high  as  they  could  lawfully  demand, 
even  in  the  absence  of  Congressional  regulation.  In  other  words, 
the  commission  would  be  prevented  from  reducing  their  rates  below 
the  maximum  amount  which  they  were  legally  entitled  to  receive 
before  the  commission  was  created.  The  action  of  Congress  in 
bestowing  the  rate-making  power  on  the  commission  would  be  in 
large  part  futile,  for  it  would  not  result  even  in  the  possibility  of 
lowering  the  legal  maximum  for  rates. 

Yet  this  is  exactly  the  situation  which  some  of  the  conserva- 
tives in  Congress  desired  to  bring  about,  and  for  which  they  labored 
most  arduously.  It  was  their  endeavor  to  secure  the  insertion  in  the 
bill  of  words  which  would  require  the  courts  to  apply  the  remunera- 
tion test.     For  example,  a  provision  that  the  rates  made  by  the  com- 

»183  u.  s.  79. 

'It  must  be  stated  that  these  remarks  of  Justice  Brewer's  were  oiiter  dicta. 
and  therefore  stand  only  as  the  expression  of  his  personal  opinion,  not  as  settled 
law.  Nevertheless  they  are  entitled  to  great  weight  because  of  the  recognized  learn- 
ing and  ability  of  their  distinguished  author. 

(302) 


Rate  Control  59 

mission  should  be  "fairly  remunerative"  was  placed  in  the  bill,  and 
remained  there  until  the  final  compromise.  Had  they  not  been 
eliminated,  the  ambition  of  the  conservatives  would  probably  have 
been  realized.  For  they  might  reasonably  have  been  interpreted  by 
the  courts  as  requiring  the  test  of  remuneration. 

But  it  is  our  special  purpose  to  consider  the  effect  of  the  act 
as  finally  passed.  Containing,  as  it  does,  the  simple  requirement  that 
rates  must  be  reasonable,  which  method  of  determining  reasonable- 
ness will  the  Supreme  Court  adopt?  Of  course  it  is  evident  that 
the  court  alone  can  furnish  a  final  answer  to  this  question.  It  is 
not  bound  by  precedent  or  other  authority,  and  can  use  its  own 
discretion.  There  are  certain  considerations,  however,  which  point 
toward  its  adoption  of  the  constitutional  test,  and  these  may  be 
briefly  noticed. 

In  the  first  place,  it  must  be  recognized  that  rate-making  is  a 
legislative  function,  in  the  exercise  of  which  the  commis-sion  is 
simply  acting  for  Congress  and  doing  its  will.  Now  there  is  no 
question  that  Congress  may  regulate  rates,  subject  only  to  constitu- 
tional restraints.  And  it  would  be  hardly  proper  to  assume  that 
Congress  meant  to  limit  itself  or  the  commission  to  a  more  narrow 
authority  unless  that  intention  clearly  appeared.  Having  granted 
the  commission  the  rate-making  power,  it  should  be  presumed  that 
Congress  granted  it  the  full  power,  subject  only  to  such  restraints 
as  the  constitution  or  the  act  itself  imposes.  And  therefore,  unless 
the  act  in  definite  terms  more  narrowly  confines  its  activity,  the 
commission  should  be  allowed  to  go  to  the  constitutional  limit.  But 
the  act  contains  no  such  definite  terms.  Therefore  the  standard  of 
reasonableness  should  be  the  constitutional  test,  and  not  that  of 
remuneration. 

But  more  definite  reasons  for  the  same  belief  are  to  be  found 
in  the  decisions  of  the  court  in  cases  involving  rates  made  bv  state 
authority.  In  reading  these  cases,  one  cannot  fail  to  notice  that  the 
court  repeatedly  speaks  of  its  task  as  involving  a  determination  of 
the  ."reasonableness"  of  the  rates.  Such  quotations  as  the  following 
will  serve  to  illustrate  the  point.  "It  was  therefore  within  the  com- 
petency of  the  Circuit  Court  to  enter  upon  an  inquiry  as  to  the 
reasonableness  and  justice  of  rates  prescribed  by  the  railroad  com- 
mission."' "The  legislature  has  power  to  fix  rates,  and  the  limit  of 
U54  tJ.  s.  399. 

(303) 


6o  The  Annals  of  the  American  Academy 

judicial  interference  is  protection  against  unreasonable  rates."^ 
"The  more  difficult  question  is  that  connected  with  the  reasonable- 
ness of  the  rates. "^  But  while  the  court  has  thus  asserted  its  right 
and  duty  to  guard  the  railroads  against  the  enforcement  by  the  state 
of  "unjust"  and  "unreasonable"  rates,  it  is  noteworthy  that  it  consist- 
ently employs  the  constitutional  test.  Would  not  the  same  practice 
naturally  be  followed  in  testing  the  "reasonableness"  of  the  com- 
mission's rates  ? 

It  is  also  a  significant  fact  that  two  clauses  of  the  act  requiring 
"reasonableness"  are  substantially  the  same  as  those  present  in 
various  state  commission  laws  which  have  come  under  the  official 
scrutiny  of  the  court.  Thus  a  general  clause  commanding  that  all 
rates  be  reasonable  was  present  in  the  Iowa  act/°  involved  in 
Chicago  and  Northwestern  Ry.  Co.  v.  Dey;^^  in  the  South  Dakota 
act,^-  involved  in  Chicago,  Milwaukee  and  St.  Paul  Ry.  Co.  v. 
Tomkins,"  and  in  the  Minnesota  act/*  involved  in  Minneapolis  and 
St.  Louis  Rd.  Co.  v.  Minnesota. ^^  Moreover,  the  additional  specifi- 
cation that  the  commission  should  prescribe  reasonable  rates  ap- 
peared in  all  of  the  acts  just  mentioned,  and  also  in  the  Texas  act,^" 
involved  in  Reagan  v.  Farmers'  Loan  and  Trust  Co.^^  Yet  in  all 
pf  these  cases  the  reasonableness  of  the  rates  was  determined 
according  to  the  constitutional  standard.  In  the  light  of  this  prac- 
tice, is  it  likely  that  the  Supreme  Court  will  feel  justified  in  inter- 
preting similar  clauses  in  the  Interstate  Commerce  Act  as  justifying 
any  other  test  of  the  commission's  rates? 

One  or  two  other  considerations  point  in  the  same  direction. 
Section  i6  of  the  act  provides  that  "if  any  carrier  fails  or  neglects 
to  obey  any  order  of  the  commission,  other  than  for  the  payment 
of  money,"  any  party  injured  thereby  or  the  commission  itself  may 
institute  legal  proceedings.  And  "if,  upon  such  hearing  as  the  court 
may  determine  to  be  necessary,  it  appears  that  the  order  was  regu- 

«143  U.   S..   344. 

»186  U.  S.  264  ;  and  for  other  examples  see  IGO  U.  S.  540  ;  176  U.  S.   174  ;  and 
154  U.  S.  307. 

"Laws  of  1888.  Chap.  28. 

"35  Fed.  Rep.  866. 

"Laws  of  1807,  Chap.   110. 

«176  U.  S.   167. 

"General    Statutes  for   1804,   Sec.   380. 

"186  U.   S.  257. 

"Laws  of  1801,   p.  55. 

»'154  U.  S.  362. 

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Rate  Control  6i 

larly  made  and  duly  served,  and  that  the  carrier  is  in  disobedience 
of  the  same,  the  court  shall  enforce  obedience  to  such  order  by  a 
writ  of  injunction  or  other  proper  process."  The  significance  of 
this  provision  seems  to  be  clear.  When  an  order  of  the  commission 
prescribing  rates  is  disobeyed  the  commission  may  petition  the 
Circuit  Court  to  secure  its  enforcement.  The  court  is  allowed  but 
a  limited  field  for  its  inquiry.  Its  duty  is  simply  to  find  out  whether 
the  order  has  been  "regularly  made"  and  "duly  served."  Having 
determined  those  questions  in  the  affirmative,  it  is  subject  to  the 
imperative  duty  of  enforcing  the  order.  But  two  observations 
should  be  made  in  this  connection.  It  may  be  suggested  that  the 
courts  might  interpret  the  words  "regularly  made"  as  justifying  an 
inquiry  at  large  into  the  reasonableness  of  the  rates.  This,  however, 
is  most  improbable,  as  it  would  surely  be  doing  gross  violence  to  the 
language.  It  might  also  be  asked  whether  this  provision  would  not 
destroy  all  power  in  the  courts  to  consider  the  amount  of  the  rates. 
Surely  not.  For  the  right  to  determine  whether  they  are  too  low 
to  be  constitutional  exists  independent  of  statutory  enactment. 
The  courts  always  enjoy  the  right  of  testing  the  reasonableness  of 
rates  according  to  the  constitutional  standard ;  but  this  clause  of 
section  i6  seems  to  forbid  the  employment  of  any  other  test. 

It  is  also  not  without  significance  that  in  section  15  the  com- 
mission is  authorized  to  "establish  through  routes  and  joint  rates," 
there  being  no  requirement  that  the  rates  be  reasonable.  This  cer- 
tainly indicates  that  joint  rates  are  subject  only  to  the  constitutional 
test.     But  if  joint  rates,  why  not  other  charges  as  well? 

We  reach,  therefore,  the  conclusion  that  when  a  case  has  arisen 
under  the  act  and  has  been  finally  decided,  the  advocates  of  a  broad 
review — of  the  remuneration  test — will  in  all  probability  find  them- 
selves defeated,  and  that  the  commission  will  be  at  liberty  to  reduce 
rates  as  far  as  the  constitution  w'ill  permit.^*  That  this  outcome  is 
heartily  to  be  desired  cannot  be  doubted.  Experience  has  shown 
that  the  state  commissions  have  suffered  greatly  from  judicial  re- 
view, though  that  review  has  rested  exclusively  upon  a  constitutional 

"Whether  this  will  be  true  so  far  as  sleeping  car  comp.inies  are  concerned  is  an 
interesting  question.  The  tendency  of  American  courts  has  been  to  deny  that  the 
sleeping  car  business  is  public  in  character.  If  this  view  is  taken  by  the  Supreme 
Court,  the  dicta  of  Justice  Brewer  in  Cotting  v.  Kansas  City  Stock  Yards  Company, 
mentioned  above,  will  become  important.  For  if  they  are  adopted  by  the  court, 
Bleeping  car  companies  will  be  entitled  to  rates  judged  by  the  test  of  remuneration. 

(305) 


62  The  Annals  of  the  Anicrica>i  Academy 

basis/^  and  the  Interstate  Commission  will  doubtless  encounter  the 
same  obstacles.  The  difficulties  will  be  great  enough  under  a  "con- 
stitutional review."  They  would  be  insurmountable  under  a  "re- 
muneration review."  The  "power"  of  the  commission  would  be 
little  more  than  nominal. 

5.  Provisions  to  Expedite  Judicial  Rci'iexu. — It  was  generally 
acknowledged  in  Congress  that,  while  judicial  review  is  inevitable 
and  in  some  ways  desirable,  it  nevertheless  presents  some  disad- 
vantageous features.  Among  these  may  be  mentioned  the  delays 
necessitated  by  carrying  a  case  through  the  courts.  If  rates  are 
suspended  pending  a  final  judicial  judgment  upon  their  reasonable- 
ness, their  enforcement  may  be  postponed  a  matter,  not  of  months, 
but  of  years  And  that  this  impairs,  and  in  most  cases  annihilates, 
their  efficacy  is  evident.  But  it  seemed  to  Congress  that  this  inci- 
dent of  judicial  review  might  be  met,  at  least  in  part,  by  legislation. 
Accordingly,  the  task  was  undertaken  of  devising  methods  to  avoid 
the  difficulty,  or  to  mitigate  its  effects. 

The  only  expedient  which  finally  found  a  place  in  the  act  was 
designed  to  hasten  the  judicial  proceedings  instituted  to  annul  the 
commission's  rates,  or  to  enforce  any  order  of  the  commission  or 
any  provision  of  the  act.  For  that  purpose  the  provisions  of  the 
Expediting  Act  of  1903  were,  with  some  modification,  made  appli- 
cable to  all  such  suits.  It  is  now  the  duty  of  the  attorney  general, 
when  anv  such  action  is  begun,  to  file  with  the  clerk  of  the  court  a 
certificate  declaring  "that,  in  his  opinion,  the  case  is  of  general 
public  importance."  "Thereupon  such  cases  shall  be  given  pre- 
cedence over  others,  and  in  every  way  expedited,  and  be  assigned 
for  hearing  at  the  earliest  practical  day,"  with  the  proviso,  how- 
ever, that  when  the  action  is  to  restrain  the  enforcement  of  an 
order  of  the  commission,  that  body  shall  have  at  least  five  days' 
notice  prior  to  the  hearing.  An  appeal  is  allowed,  even,  it  seems, 
from  an  interlocutory  decree,  but  must  be  taken  within  thirty  days, 
and  only  to  the  Supreme  Court,  in  which  it  has  priority  over  all 
causes,  except  causes  of  like  character  and  criminal  causes.  These 
provisions  will  no  doubt  prove  useful,  though  even  with  their  aid 
the  complete  trial  of  a  case  will  doubtless  consume  many  months. 

Two  other  expedients  were  proposed,  but  neither  adopted.  One 
contemplated  the  filing  of  a  bond  by  the  railroad,  pending  judicial 

"A  point  elaborated  in  the  author's  "Railroad  Rate  Control,"  supra  cit. 

(306) 


Rate  Control  63 

I e  view,  the  purpose  of  the  bond  being  to  assure  repayment  to  each 
shipper  of  the  overcharge  should  the  rates  finally  be  sustained.  The 
obvious  weakness  of  this  plan  was  that  the  shipper  is  not  always 
the  party  injured  by  the  extortion.  The  second — a  more  thorough- 
going plan — proposed  that  the  rates  should  be  made  effective  pend- 
ing judicial  investigation;  that,  in  other  words,  the  courts  should 
be  forbidden  to  delay  their  enforcement  by  the  issue  of  temporary 
injunctions;  that  no  restraining  order  should  be  issued  until  they 
should  be  found  to  be  unreasonable.  This  proposal  seemed  emi- 
nently reasonable,  in  view  of  the  accepted  canon  of  statutory  con- 
struction, that  if  the  constitutionality  of  a  statute  is  in  doubt,  the 
statute  must  be  sustained.  Only  when  its  unconstitutionality  is 
proved  beyond  a  reasonable  doubt  should  it  be  set  aside.  Now  it  is 
recognized  by  the  courts  that  rates  made  either  by  legislatures  or 
commissions  are  acts  of  legislation.  They  should  therefore  not  be 
annulled  until  their  unconstitutionality  is  clearly  established,  which 
cannot  occur  until  the  conclusion  of  judicial  proceedings. 

But  in  spite  of  all  that  could  be  said  in  its  favor,  the  proposal 
was  vigorously  and  bitterly  opposed.  The  merits  of  the  question, 
however,  were  little  considered,  for  the  discussion  speedily  took  the 
form  of  a  so-called  constitutional  debate.  The  right  of  Congress 
to  limit  the  judicial  power  was  called  in  question.  It  was  argued 
that  while  Congress  could  create  or  abolish  the  federal  courts, 
other  than  the  Supreme  Court,  it  could  not  prevent  them  whfle 
existing,  from  exercising  all  judicial  functions,  both  legal  and 
equitable,  which  existed  when  the  constitution  was  adopted,  and 
which  included  the  power  to  issue  injunctions.  On  the  other  hand, 
it  was  contended  that  Congress  in  creating  any  particular  courts 
could  confer  upon  them  whatever  powers  it  deemed  wise.  Into  the 
details  of  these  arguments  we  need  not  go.  The  opposition  won, 
and  the  proposal  was  defeated.  This  is  very  much  to  be  regretted. 
Few  suggestions  for  rendering  more  eflfective  the  public  regulation 
of  rates  have  been  so  full  of  interest  as  this.  While  there  is  seriou.? 
doubt  as  to  its  constitutionality,  there  can  be  no  doubt  that,  if  held 
to  be  valid,  it  would  be  of  signal  service  in  strengthening  public 
control  of  rates,  and  in  mitigating  some  of  the  serious  evil  results 
of  judicial  review.  For  this  reason  the  defeat  of  the  plan  is  de- 
plorable. Had  Congress  adopted  it  and  embodied  it  in  the  act,  its 
constitutionality,  which  is  now  in  doubt,  could  have  been  speedily 

(307) 


64  The  Annals  of  the  American  Academy 

determined.  Were  the  decision  to  go  against  it,  no  harm  could  be 
done.  The  vahdity  of  the  balance  of  the  act  would  not  be  affected. 
But  were  the  decision  to  be  in  its  favor,  there  would  result  a  great 
gain  for  the  cause  of  railroad  reform. 

It  may  be  added  that  the  doubt  of  its  constitutionality  is  due 
not  so  much  to  the  consideration  suggested  above  as  to  something 
else.  The  contention  that  Congress  is  without  power  to  limit  the 
authority  of  the  lower  federal  courts  is  not  generally  accepted  as 
sound,  and  probably  would  not  be  upheld  by  the  Supreme  Court. 
But  there  is  another  ground  on  which  the  railroads  could  base  their 
claim  to  the  temporary  injunction.  There  is  no  doubt  that  they  are 
entitled,  under  the  constitution,  to  a  reasonable  income  from  their 
business.  And  there  is  no  doubt  that  if  compelled  for  a  year  or  so 
to  operate  rates  too  low  to  yield  that  income,  they  would  be  in  a 
sorry  plight.  When  the  courts  had  determined  that  the  rates  were 
unreasonably  low,  their  only  remedy  would  be  to  sue  each  shipper 
for  the  difference  between  the  charge  paid  and  the  reasonable 
charge,  and  this  would  result  in  a  multitude  of  trivial  and  un- 
profitable suits.  All  this  has  been  repeatedly  recognized  by  the 
courts,  which  declare  that  a  railroad  suffers  irreparable  injury  if 
it  must  operate  unreasonable  rates  pending  judicial  review.  There- 
fore the  courts  have  held  that  in  order  to  protect  the  company  in 
its  constitutional  rights,  injunctions  must  be  issued  at  the  outset  to 
stay  the  enforcement  of  the  rates.  This  right  to  equitable  relief  is 
now  firmly  established.  Thus  we  find  the  Supreme  Court  approving 
a  decree  of  injunction  issued  by  a  circuit  court  to  restrain  the 
enforcement  of  rates  made  by  a  state  commission,  although  the 
state  law  declared  that  the  rates  should  be  in  force  pending  judicial 
review.  Indeed,  we  find  the  court  going  even  farther.  In  Chicago, 
Milwaukee  and  St.  Paul  Ry.  Co.  v.  Tompkins,^"  a  temporary  injunc- 
tion was  issued  at  the  outset,  but  after  a  thorough  trial  the  lower 
court  declared  the  rates  to  be  reasonable  and  denied  a  perpetual 
injunction.  Upon  appeal,  however,  the  Supreme  Court  directed  that 
the  restraining  order  be  continued  pending  a  final  decision  of  the 
case.  This  illustrates  how  zealous  the  court  is  in  protecting  the 
constitutional  rights  of  the  railroads.  In  view  of  the  dicta  and  the 
practice  of  the  court,  it  may  be  asserted  with  some  confidence  that 
a  statute  denying  the  temporary  injunction  in  rate  cases  would  be 

»176  U.   S.   167. 

(308) 


Rate  Control  6$ 

overthrown  by  the  court  on  the  ground  that,  in  effect,  it  prevented 
the  courts  from  protecting  the  railroads  in  their  constitutional 
rights.  Nevertheless,  it  is  to  be  regretted  that  the  action,  or  in- 
action, of  Congress  has  prevented  a  definite  determination  of  this 
very  important  question. 

6.  Penalties. — The  penal  provisions  connected  with  the  rate- 
making  power  may  be  disposed  of  in  a  few  words.  They  provide 
for  punishment  b>  fine  only.  "Any  carrier,  any  officer,  representa- 
tive or  agent  of  a  carrier,  or  any  receiver,  trustee,  lessee,  or  agent 
of  either  of  them,  who  knowmgly  fails  or  neglects"  to  obey  the 
commission's  orders  establishing  rates,  "shall  forfeit  to  the  United 
States  the  sum  of  five  thousand  dollars  for  each  offense,"  and  each 
day  of  violation  is  to  be  regarded  as  a  separate  offense. 

In  concluding  this  discussion  of  the  amended  Interstate  Com- 
merce Act,  one  question  of  a  general  nature  must  be  briefly  consid- 
ered. In  so  far  as  the  act  pertains  to  the  regulation  of  rates  by  the 
commission,  how  effective  will  it  probably  be?  How  well  does  it 
equip  the  commission  with  powers  necessary  for  the  successful 
control,  in  the  public  interest,  of  railroad  charges?  The  answer  to 
these  queries  must  be  the  confession  that,  while  the  act  will  doubt- 
less improve  existing  transportation  conditions,  it  will  in  all  prob- 
ability prove  but  moderately  effective.  It  is  not  in  all  respects 
thoroughly  adequate.  The  review  given  above  discloses  several 
weak  points.  The  commission  will  doubtless  be  embarrassed  by  its 
lack  of  authority  over  transportation  exclusively  by  water,  by  the 
requirement  of  a  formal  complaint  in  all  cases,  by  its  inability  to 
fix  a  minimum  rate,  and  by  the  numerous  serious  difficulties  inci- 
dent to  judicial  review.  In  addition,  a  further  obstacle  may  be 
found  in  the  failure  of  the  act  to  confer  any  right  of  control  over 
the  classification  of  freight.  Two  of  these  defects  are  probably 
inevitable  under  our  constitutional  system,  but,  even  aside  from 
them,  the  act  is  below  the  standard  which  might  have  been  attained. 
Experience,  however,  will  show  better  than  present  analysis  the 
respects  in  which  the  act  must  be  altered  or  strengthened  before  the 
commission  can  reach  its  maximum  efficiency.  For  the  present  the 
reflection  is  possible  that,  whatever  the  achievements  of  the  com- 
mission may  be,  the  passage  of  the  act  has  already  been  justified, 
for  the  large  number  of  reductions  in  rates  which  have  been  volun- 
tarily made  by  the  railroads  gives  evidence  that  the  enactment  of  the 
law  has  not  been  in  vain. 


PRUSSIAN  RAILWAY  ADMINISTRATION 


Bv  Eknp:st  S.  Bradford, 
Fellow   in    Political    Science,   University    of    Pennsylvania. 


The  developnient  of  the  Prussian  railway  system  may  be  sum- 
marized as  follows : 

I.  The  period  of  early  railway  building  and  state  aid  extended 
from  1835  to  1849,  during  which  there  were  no  state  railroads.  The 
first  general  law  regulating  Prussian  railways  was  passed  in  1838 — 
comprehensive  and  detailed,  providing  for  strict  governmental  con- 
trol. From  1843  to  1849  the  state  assisted  various  private  railways 
by  guaranteeing  a  minimum  interest  to  takers  of  stock,  reserving  to 
itself  the  right  to  take  over  the  lines  if  the  companies  proved  unable 
to  profitably  operate  them. 

II.  The  first  period  of  state  railroads  lasted  from  1850  to  1880, 
during  which  private  and  public  lines  were  co-existent.  The  fir.<=t 
state  railroad,  constructed  for  military  reasons,  was  opened  in  1850, 
and  at  the  end  of  that  year  amounted  to  54  miles  in  length.  By 
1880  Prussia  had  built  5,350  kilometers  and  had  taken  over  of 
private  lines  700  kilometers — less  than  435  miles.  From  1862  to 
1878  was  a  period  of  speculation  and  general  railway  development, 
during  which  many  new  railroads  were  projected. 

III.  State  railways  predominant,  1880  to  the  present  time.  In 
1878  a  definite  policy  of  nationalization  for  all  Prussian  railways 
was  inaugurated,  including  the  purchase  of  existing  private  lines 
and  the  extension  of  the  state  railroads.  Beginning  in  i88c,  by  1886 
the  state  had  acquired  about  12,800  kilometers  and  had  built  2,000 
kilometers^  more.  Since  that  date,  and  up  to  April  i,  1905,  it  has 
built  10,000  kilometers  and  bought  or  secured  by  lease  3,300  more. 
Only  in  the  years  1887,  1890,  1893,  1895,  1897  and  1903  did  it 
acquire  more  than  100  kilos  a  year,  while  during  the  same  period 
it  has  constructed   from  300  to  680  kilos  annually."     In   1895  the 

*A  kilometer  is  .6214  of  a  mile. 

'Geschaftliche   Nnchriohten    fiir   rlen    Bereich    den    vereinisrten    preussischen    und 
hesBlschen  Staatseisenhahnen.  Teil   I.     Berlin.   1006,  pp.   IS,  20. 

(310) 


Prussian  Raihvay  Administration  67; 

state  administrative  system  was  reorganized,  simplified  and  central- 
ized, and  in  1897  the  Hessian  railways — somewhat  less  than  600 
miles — were  incorporated  in  the  Prussian  system,  which  also  oper- 
ates the  imperial  lines  in  Alsace-Lorraine.  From  1850  to  1880  the 
state  built,  during  the  next  six  years  bought,  and  from  1887  to  the 
present  time  built  again,  mainly.  At  the  present  time,  more  than 
nine-tenths  of  the  railway  mileage  of  Prussia  is  owned  and  operated 
by  the  government. 

Classification  of  Prussian  Raikvays. 

The  law  of  1838  classified  Prussian  railways  under  two  heads: 
(i)    Main    lines    (Hauptbahnen) — standard    guage,    important 
roads,  nearly  equivalent  to  our  "trunk  lines." 

(2)  Branch  or  feeder  lines  (Nebenbahnen),  also  of  standard 
gauge,  of  secondary  importance,  yet  a  part  of  the  general  railway 
net.  There  is  no  intrinsic  difiference  between  the  two  classes  as  far 
as  track,  roadbed,  etc.,  are  concerned.  Fewer  and  slower  trains, 
less  mail,  etc.,  are  the  signs  of  difiference  in  traffic  importance  rather 
than  in  essential  equipment. 

A  later  law — that  of  1892 — made  three  additional  classes: 

(3)  Local  railways  or  "light  railways"  (Kleinbahnen),  which 
serve  local  rather  than  through  traffic,  and  correspond  roughly  to 
American  suburban  or  interurban  railroads,  operated  usually  by 
steam.  These  are  held  to  be  no  part  of  the  general  traffic  system 
and  are  subject  to  dififerent  regulations  from  (i)  or  (2).  We  may, 
therefore,  omit  "Kleinbahnen"  from  this  account  of  the  general 
Prussian  railway  service,  noting  only  that  if  a  light  railway  attains 
sufficient  importance  it  may  be  transferred  into  the  class  of  branch 
railroads  (2),  becoming  an  integral  part  of  the  general  system. 

(4)  Small  private  feeder  branches   (Anschlussbahnen). 

(5)  Isolated  private  roads,  not  operated  by  locomotives,  are 
of  still  less  importance,  and  have  no  part  in  the  discussion  of  the 
public  traffic  system.  We  may,  therefore,  confine  our  attention  to 
the  two  main  classes  first  enumerated  and  from  an  American  view- 
point class  them,  for  many  purposes,  as  one. 

There  are  21,017  niiles  (33,822  kilometers)  of  railway  (main 
and  branch  lines,  standard  gauge)  operated  by  the  Prussian  state ; 
and    1,477   niiles  of  standard   gauge   railroad   operated   by  private 

(311) 


68  The  Annals  of  the  American  Academy 

companies,  of  which  265  are  classed  as  main  Hne  (Hauptbahnen.)* 
Most  of  this  Hes  in  Prussia,  except  the  Hessian  roads  and  the  im- 
perial lines  in  Alsace-Lorraine — some  2,500  miles,  operated  by  Prus- 
sia. During  the  year  1904-5  the  state  built  or  completed  314  miles 
of  track  and  purchased  34  miles.  By  April  i,  1907,  from  the  budget 
estimates,*  there  will  be  35,107  kilos  of  standard  state  railway  in 
operation — 21,816  miles,  besides  150  miles  of  narrow  gauge  stace 
railway. 

This  large  mileage,  three-fifths  of  all  Germany's  and  twice  the 
size  of  the  Pennsylvania  System,  is  operated  by  the  Prussian  Mm- 
ister  of  Public  Works  and  his  railway  administration,  consideration 
of  which  naturally  falls  under  four  heads : 

I.  Control  of  the  Prussian  railways  by  the  Imperial  Govern- 
ment. 

II.  The  Minister  and  the  system  of  Directories. 

III.  The  Advisory  Councils. 

IV.  Other  administrative  bodies. 

I.     Imperial  Supervision. 

It  may  be  well  to  recall  at  the  outset  that  Prussia,  the  largest 
and  most  populous  of  the  states  of  Germany,  is  not  coextensive  with 
the  empire.  Above  Prussia,  Bavaria,  Baden,  Saxony,  and  the 
smaller  states  stands  the  German  "Reich" — and  the  contv'ol  of  the 
Prussian  state  railways  by  the  imperial  governments  merits  a  brief 
consideration.  If  we  imagine  the  State  of  New  York  to  own  and 
operate  the  railways  within  its  borders,  and  to  operate  by  lease 
those  in  Connecticut  and  Rhode  Island  also,  we  have  a  situation 
roughly  corresponding  to  that  in  Germany,  where  Prusisia  not  only 
owns  and  operates  18,000  miles  of  railways  within  its  own  borders, 

"The  mileage  April   1,   190.5,  was  divided   as  follows  : 

1.  Standard  sauge  state  railways    B.S,822  kilometers 

2.  Narrow  gauge  state  railways    250         " 

3.  Anschlussbabnen     (state     railways)     standard     and 

narrow    gauge    401  " 

4.  Private  railways,  standard  gauge,  main  and  branch 

lines     2.377 

5.  Private  railways,  narrow  gauge   332  " 

6.  Local    railways    (private   kleinbahnen) 7,178         " 

7.  Street   railways    (strassenbahnen) 2.349  " 

Bericht  iiber  die  Ergebnisse  des  Betriebes  der  vereinigten  preussischen  und  hesstschem 
Staatseisenbahnen,  1904-.'>.  Berlin,  1905,  pp  1-4.  Also,  Gescbiiftliche  Nachrichten, 
1906,  pp.  8,  14,  15. 

Hieschaftliche  Nachrichten,  1900.  p.  8 

(3^2) 


Prussian  Railzcay  Adiiiiiiistration  69 

but  manages  also  as  part  of  its  system  the  railroads  in  Alsace- 
Lorraine  and  Hesse — over  2,500  miles  more. 

By  the  imperial  constitution  adopted  in  1871,  the  empire  has 
the  right  of  control  and  legislation  on  the  subject  of  railways. "^  It 
may  build  railroads  through  any  state,  even  against  the  opposition  of 
that  state. *^  (As  a  matter  of  fact,  it  has  never  exercised  this  right, 
but  has  left  the  construction  and  operation  of  railways  to  the  various 
states.)  Further,  under  Article  XLII,  the  federal  government  binds 
itself  to  cause  the  German  railways  to  be  managed  in  the  interest  of 
the  general  traffic,  as  a  single  system,  with  uniform  standards  for 
new  lines.  Regulations  for  the  operation  of  the  roads  shall  be 
uniform,  rolling  stock  shall  be  amply  furnished  to  meet  the  demands 
of  traffic  ;^  time  tables,  freight  trains  and  direct  transfers  of  goods 
are  provided  for,^  and,  most  important,  the  federal  government 
reserves  the  right  to  control  the  tariffs,**  and  to  unify  and  reduce 
rates  on  all  German  railways.®  In  times  of  flood  or  famine,  rail- 
ways shall  carry  grain,  flour,  potatoes  and  other  provisions  at 
reduced  rates. ^'^  And  finally,  for  military  purposes,  they  are  to  meet 
any  demand  of  the  federal  authorities  for  the  use  of  the  railways  for 
the  national  defense ;  and  troops  and  war  munitions  are  to  be  trans- 
ported at  uniformly  reduced  rates. ^^ 

Constitutionally,  therefore,  the  empire  may  exercise  a  wide 
control  over  all  the  railways,  state  or  private,  in  behalf  of  the 
general  economic  welfare  and  for  the  military  defense  of  Germany. 
In  actual  operation,  this  control  is  potential  rather  than  actively 
exerted.  The  imperial  railway  office  ( Reichseisenbahnamt).  at 
Berlin,  receives  reports  from  the  railway  directories  of  the  several 
states,  as  to  stretches  of  new  track  opened,  new  stations,  changes  in 
tariffs,  etc. ;  it  has  the  right  to  demand  information  of  any  railway 
or  railway  division,  and  to  investigate  it  personally.  Certain  regu- 
lations besides,  particularly  as  to  branch  lines  (Nebenbahnen),  must 
be  approved  by  the  imperial  railway  office.  Its  influence  is  further 
exerted  to  secure  on  all  the  German  railroads  unity  of  regulations 
and  rates. 

"Art.  IV,  8. 
'Art.  XLI. 
'Art.  XLIII. 
'Art.  XLIV. 
•Art.  XLV. 
"Art.  XLVI. 
"Art.  XLVII. 

(313) 


70  The  Annals  of  the  American  Academy 

11.     The  Directories. 

The  administration  of  the  21,000  miles  of  Prussian  railway 
lines,  out  of  a  total  of  32,000  in  all  Germany,  is  in  the  hands  of 
(i)  the  Prussian  Minister  of  Public  Works,  (2)  the  Royal  Rail- 
way Directories,  assisted  by  (3)  certain  Advisory  Councils.  It  will 
not  be  necessary  to  discuss  the  system  prior  to  1895,  when  it  was 
entirely  reorganized,  simplified  and  centralized. 

At  the  head  of  the  system  stands  the  Minister  of  Public  Works,^- 
with  an  important  undersecretary^"  and  a  staff  divided  into  depart- 
ments^'* of  construction  (Bauabteilung),  traffic  (Verkehrs-),  man- 
agement (Verwaltung-),  and  finance.  General  administrative  over- 
sight of  the  whole  Prussian  system— private  as  well  as  state  rail- 
roads— is  the  duty  of  the  minister's  office.  All  special  export  tariff's 
and  through  rates  are  subject  to  his  assent;  commodity  rates  like- 
wise ;  and  both  new  rates  and  the  changing  of  old  ones  must  be 
approved  by  him.^^ 

In  the  hands  of  the  Royal  Railway  Directories,  however,  lies 
the  actual  fixing  and  adjusting  of  rates,  freight  and  passenger,  and 
administrative  questions  in  general.  Of  these  there  are  twenty-one, 
one  having  been  added  at  the  time  of  the  incorporation  of  the  Hes- 
sian railways  with  the  Prussian  system.  They  are  located  with 
centers  as  follows :  Altona,  Berlin,  Breslau,  Bromberg,  Cassell, 
Cologne,  Danzig,  Elberfeld,  Erfurt,  Essen,  Frankfurt-on-the-Main, 
Halle,  Hanover,  Kattowitz,  Konigsberg,  Madgeburg,  Mainz,  Miin- 
ster,  Posen,  St.  Johann-Saarbriicken,  and  Stettin. 

Each  directory  is  a  board  of  directors,  having  under  its  control 
all  matters  pertaining  to  the  stretch  of  track  within  its  jurisdiction. 
The  directorate  corresponds  roughly  to  the  division  on  the  American 
railway.  One  directory  may  manage  more  mileage  than  another, 
depending  on  the  density  of  traffic.  The  Berlin  directory,  for  ex- 
ample, manages  only  577  kilometers  (in  1905).  while  that  of 
Konigsburg  directs  2,276  kilometers  of  track,  and  Halle  1,970  kilo- 
meters.^^ 

At  the  head  of  the  directory  is  a  president:  two  alternates,  an 

'21  n   lOOG,  Hen-  Budde. 

"In  1906,  Hen-  Fleck. 

"Universal  Directory  of  Ry.   Officials,   London.   1004. 

"Sammlunar  von  Vorschriften  betreffend  die  Giitertariffo.  Berlin,  1902,  pp.  26,  27, 

"Geschaftliche   Nachrichten,   Teil    I.     Berlin.    1906.   p.    11. 

(314) 


Prussian  Railway  Administration  7^ 

Oberregierungsrath  and  an  Oberbaurath,  are  chosen  from  the  mem- 
bers to  preside  in  the  absence  of  the  president. 

The  directory  is  most  important.  Here  is  lodged  the  respon- 
sibihty  of  fixing  and  altering  normal  freight  rates  and  passenger 
fares,  commodity  rates,  preferential  tariffs,  export  rates,  changes  in 
freight  classification,  and  the  whole  administrative  work  of  the 
division.  Subject  to  control  indeed  by  the  minister,  and  assisted  by 
advisory  councils,  the  directories  are  the  centers  of  the  Prussian 
railway  system. 

Subordinate  to  each  directory  are  four  offices  or  sub-depart- 
ments (Inspektionen),  which  have  charge  of  the  actual  local  man- 
agement: (i)  for  traffic  (Verkehr),  (2)  operation  (Betrieb),  (3) 
technical  matters  (Maschinen),  and  (4)  machine  shops  (Werk- 
statten)."  They  are  controlled  by  rather  definite  rules  and  regula- 
tions, only  the  directories  having  large  discretionary  power.  The 
directorate  at  Altona,  with  a  board  of  seventeen  members,  has  thir- 
teen operating  managers,  six  machine  "inspectors,"  four  managers 
of  machine  shops,  and  five  traffic  managers.  Berlin,  with  a  directory 
numbering  twenty-five,  has  nine  in  the  operating  department,  two 
for  "machines,"  eight  for  shops,  and  four  traffic  managers.  And 
so  they  vary  with  the  needs  of  the  varying  branches  of  the  service. 
The  duties  of  the  machine  shop  and  technical-mechanical  (Masch- 
inen) inspectorships  hardly  require  explanation.  The  work  of  the 
traffic  manager  is  to  bring  the  public  in  his  district  into  close  touch 
w-ith  the  railways,  while  the  operating  managers  have  charge  of  the 
running  of  trains,  the  maintenance  of  way,  and  track  inspection. 

Besides  these  four  departments  there  are  special  construction 
offices  (Bau-abteilungen)  created  by  the  Minister  of  Public  Works 
when  needed,  for  the  overseeing  of  extensive  track-building  opera- 
tions, sometimes  independent  of  the  directories,  sometimes  closeb 
connected  with  them,  but  usually  with  duties  carefully  laid  dow 
by  law.^^  The  telegraph  department,  formerly  classed  as  one  of  th' 
Inspektionen,  was  abolished  April  i.  1902,  its  work  being  merged 
partly  in  the  general  supervision  of  the  directory,  partly  in  the 
operating  department.^® 

Each  directory  has  its  central  office,  wnth  clerks,  treasurer,  and 

"Bericht    uber   die   Ergebnisse   des   Betriebes    der   vereinigten    preussischen   n»fl 
hessisrhen   Stnntseisenbahnen.   1004.     Berlin.   100.".  p.   12. 

"Sonderabdniclc  ans  Arcliiv  fur  Eisenbalinwesen,  1905,  pp.  313,  320. 
"Qeschaftliche  Naclirichten,   1906.   p.   30. 

(315) 


72  The  Annals  of  the  American  Academy 

its  own  bookkeeping  department.  Tlie  methods  of  keeping  accounts 
were  much  simplified  by  the  reorganization  in  1895,  the  amount  of 
statistics  required  lessened,  and  the  number  of  clerks  reduced,  effect- 
ing a  saving  of  nearly  $5,000,000  a  year.-** 

Besides  the  strictly  divisional  duties  of  each  directory — those 
pertaining  to  its  own  territory — certain  general  matters  affecting  the 
whole  Prussian  service  are  in  charge  of  particular  directories.  The 
office  at  Madgeburg,  for  example,  has  charge  of  the  car  distribu- 
tion for  all  Prussia ;  another  directory  controls  the  ordering  of 
rolling  stock ;  others  the  purchase  of  roadbed  materials,  rails,  ties, 
etc. ;  workshop  supplies ;  accounting  and  auditing  for  the  general 
service ;  and  the  appointment  of  minor  officials.  There  are,  besides, 
made  up  from  various  directories,  special  committees  on  technical 
questions,  such  as  locomotives,  passenger  coaches,  brakes,  telegraph 
and  block  signals. 

The  directories,  then,  are  the  most  important  and  essential  part 
of  the  Prussian  railway  administration,  possessing,  as  they  do,  gen- 
eral control  over  the  fixing  and  altering  of  freight  rates  and  pas- 
senger fares,  commodity  rates,  preferential  tarififs,  printing  of 
schedules,  entering  into  agreements  with  other  German  railways, 
etc.  It  is  the  directories  which  co-ordinate  the  technical  and  admin- 
istrative elements  so  that  imity  of  operation  results ;  and  to  them  is 
due  in  no  small  measure  the  success  of  the  Prussian  railway  system. 

The  Control  of  Private  Railroads. 

Railroads  owned  and  operated  by  private  companies,  serving 
public  traffic,  are  also  subject  to  the  control  of  the  directories,  and 
require  a  brief  consideration.  Private  railways  in  Prussia  at  the 
present  time  are  few  and  of  minor  importance  ;-^  the  only  one  with 
over  100  miles  of  track  in  1905  was  the  Prussian  Southern  Railway, 
with  150  miles.  The  Prussian  Government  at  the  beginning  regulated 
strictly  the  construction  of  all  railroads,  aiming  to  prevent  the 
building  of  unnecessary  lines.  A  company  wishing  to  build  through 
a  certain  district  had  to  prove  to  the  Minister  of  Public  Works  that 
existing  lines  were  not  sufficient ;  that  the  proposed  road  would 
serve  the  public  interests ;  and  that  it  was  practical  and  permissible 
from  a  military  standpoint.     Detailed  plans  of  the  whole  route  must 

^Tollier — Report  on  Prussian  Railways.  1902.  (British  Diplomatic  and  Con- 
sular Reports.   No.   .574.      Also,   Archiv   fiir   Eisenhahnwesen.   100.5.   pp.   326-329. 

"This  does  not  include  local  and  street  railways  ;  only  main  lines  and  branches. 

(316) 


Prussian  Railz\.'ay  Administration  "j;^ 

be  submitted,  together  with  the  permission  of  local  foresters  to 
traverse  tracts  of  woodland,  and  the  consent  of  other  local  authori- 
ties. After  construction,  the  state  inspected  the  road,  its  main- 
tenance, operation  and  rates,  and  exercised  a  far-reaching  control. 
Railways  already  in  existence  were  protected  by  the  reluctance  of 
the  state  to  grant  new  charters. 

With  the  almost  complete  nationalization  of  the  railways,  how- 
ever, state  control  of  private  lines  has  ceased  to  be  an  important 
question :  it  is  interesting  only  in  connection  with  our  American 
policy  toward  railroads.  In  Prussia,  interest  centers  not  about  public 
control  of  private  railways,  but  how  best  to  manage  the  state-owned 
lines. 

III.     The  Advisory  Councils. 

Closely  associated  with  the  directories,  and  provided  for  by 
law,  are  certain  Advisory  Councils — nine  Circuit  Councils  and  a  Na- 
tional Council,  representing  the  railway  shipping  interests  and  bring- 
ing into  close  touch  with  the  railway  management  those  who  use  it 
most.  The  Circuit  Council  (Bezirkseisenbahnrat),  composed  as  it  is 
of  representatives  of  chambers  of  commerce,  boards  of  trade,  lum- 
bermen, millers,  foundrymen,  dairy  associations,  iron  and  steel 
manufacturers,  beet  sugar  men.  etc.,  etc.,  knows  most  intimately 
the  needs  of  the  commercial  classes.  It  may  recommend  to  the 
directory  changes  in  rates,  in  classifications  of  freight,  in  operating 
rules,  etc.,  as  needed  by  certain  industries  or  the  shipping  interests 
as  a  whole.  These  recommendations  the  directory  is  bound  to  care- 
fully consider ;  it  is  required  by  law  to  consult  the  council ;  it  may 
ask  its  advice  on  any  question  connected  with  the  service,  and,  while 
not  compelled  to  adopt  the  council's  recommendations,  usually  gives 
them  most  careful  consideration. 

As  there  are  nine  councils  and  twenty-one  directories,  one 
council  advises  more  than  one  directory.  The  standing  committee 
of  the  council  hears  petitions  of  shippers,  complaints,  and  first 
debates  thoroughly  matters  which  it  later  presents  to  the  council. 

The  National  Council  (Landeseisenbahnrat)  bears  the  same 
relation  to  the  Minister  of  Public  Works  that  the  circuit  council 
bears  to  the  directory.  It  consists  of  forty  members,  who  hold 
oflfice  for  three  years ;  ten  of  them  are  appointed  by  the  various 
Prussian  state  ministers,  and  thirty  are  elected  by  the  circuit  coun- 

(317) 


74  The  Annals  of  the  American  Academy 

cils  from  residents  of  the  city  or  province  in  which  the  circuit 
council  acts.  They  represent  agricultural,  manufacturing,  forestry, 
and  trade  interests.  The  national  council  meets  twice  a  year,  and 
considers  general  questions,  such  as  the  proposed  budget,  rates, 
general  freight  classifications,  etc.  It  submits  its  report  to  the 
Prussian  Landtag  (Parliament),  as  well  as  making  recommenda- 
tions to  the  Minister  of  Public  Works. 

The  councils  bring  railway  and  shippers  together;  railway 
ofificials  learn  the  needs  of  shippers,  while  commercial  bodies  and 
shippers  understand  the  railway,  its  policy  and  problems. 

IV.     Administrative  Adjuncts. 

Other  bodies  which  play  a  more  or  less  important  part  in 
determining  Prussian  railway  rates  and  regulations  are: 

1.  The  General  Conference  of  German  railways — an  imperial 
body,  composed  of  members  representing  all  the  German  railways, 
both  state  and  private.  Of  322  members  in  1901,  apportioned  accord- 
ing to  mileage,  the  Prussian  state  railways  had  139  votes,  Bavaria 
28,  Saxony  16,  Alsace-Lorraine  11,  Baden  10,  etc.  This  conference 
discusses  subjects  of  interest  to  all  the  German  railways — not  Prus- 
sia only — interstate  rates,  freight  bills,  etc.  It  is  a  voluntary  ad- 
visory body,  and  does  for  Germany  as  a  whole  somewhat  the  same 
work  as  the  national  council  does  for  Prussia. 

Subordinate  to  the  General  Conference  is.  the  standing  com- 
mission, which  holds  sessions  with  another  subordinate  body,  the 
committee  of  shippers  (Verkehrinteressanten),  and  prepares  mat- 
ters for  consideration  by  the  conference. 

2.  The  Society  of  German  Railway  Managements,  which  in- 
cludes more  than  German  railways — those  in  Holland,  Belgium, 
Roumania,  Austria,  Hungary,  Bosnia,  and  Russian  Poland.  Both 
state  and  private  railroads  are  eligible.  It  is  concerned  chiefly  with 
questions  of  uniformity.  It  was  instrumental  in  securing  the  treaty 
of  Berne  (1890),  under  which  it  deals  with  through  rates,  uniform 
bills  of  lading,  international  routings  and  customs  house  regulations. 

This,  then,  is  the  Prussian  system  of  state  railway  administra- 
tion— Advisory  Councils,  responsible  Directories,  a  Minister  of  Pub- 
lic Works,  with  general  oversight.  Owned  and  operated  by  the 
state,  the  railways  are  managed  in  accordance  with  a  definite  national 
policy — the  economic  development  of  Prussia  as  a  whole,  and  Ger- 

(318) 


Prussian  Railway  Administration  75 

many,  the  industrial  welfare  of  all  parts  of  the  state,  and  for  the 
military  protection  and  strengthening  of  the  nation. 

Labor  Conditions. 

Toward  its  employees  the  policy  of  the  state  has  been  liberal. 
Pension  funds  are  provided  for  sick  and  disabled  employees,  and 
for  those  grown  old  in  the  railway  service  of  the  state.  To  these 
funds  every  workman  contributes,  and  the  administration  pays  an 
equal  amount.  In  1900  the  old  age  pension  fund  amounted  to 
$15,000,000.  Dwellings  also  are  erected  for  workmen,  who  are 
obliged  to  live  near  their  work  and  are  unable  to  obtain  houses  at  a 
reasonable  rate,  which  are  rented  to  them  at  a  low  figure.  In  1899, 
30,840  such  dwellings  had  been  erected  out  of  the  funds  at  ordinary 
disposal ;  in  1905,  the  number  had  increased  to  40,800.--  Moreover, 
hours  of  labor  are  strictly  limited  for  all  classes  of  employees,  long 
continuous  unrelieved  work  being  forbidden  by  law,  and  the  law 
enforced. 

In  the  486  machine  shops,  in  addition  to  the  usual  work,  2,439 
apprentices  were  being  trained  (1905)  for  future  service  as  ma- 
chinists, repairmen,  etc.,  besides  1,162  apprentices  in  special  machine 
shops.-'' 

There  were  on  April  i,  1905,  about  400,000  workmen  and 
officials  employed  on  the  Prussian  state  railways.-* 

Engineering  and  Technical  Results, 

Improved  passenger  coaches  are  being  put  on,  more  like  Amer- 
ican cars  than  on  other  continental  roads,  with  end-doors,  wash 
rooms,  vestibules,  etc.  The  Prussian  freight  cars,  always  smaller 
than  those  in  the  United  States,  but  larger  than  those  in  England, 
are  being  increased  in  size,  to  hold  twenty  and  thirty  tons  ;'-^  and 
steel  cars  are  coming  into  use.-^  Electric  traction  has  been  experi- 
mented with — a  third-rail  system.  Westinghouse  brakes,  steam  heat 
and  gas  lighting  for  passenger  cars,  and  the  adoption  of  a  block 
signal  system  indicate  that  for  European  railways  the  Prussian  are 
making   good    progress.      In    1905    there    were    32,847    telephones 

»2Geschaftliche  Nachrichten,   1906,   p.   110. 

''Bericlit  uber  die  Ergebnisse  des  Betriebes,   1904-05,  p.   15. 

«Geschaffliche   Nachrichten.   190fi,   p.    118. 

•^A  German  ton  equals  2,204  pounds. 

WBericht,  1904,  p.  23,  1906. 

(319) 


76  The  Annals  of  the  American  Academy 

in  use  in  the  railway  service,  of  whicii  5,467  were  installed  during 
the  preceding  twelve  months.-' 

Financial  Results. 

The  capitalization  of  the  Prussian-Hessian  system,  about 
$1,952,750,000  in  1899,  amounted  in  1905  to  $2,225,000,000,-'*  about 
$105,800  per  mile.  The  average  net  profits  amounted  in  1903-4  to 
7.12  per  cent  and  in  1904-5  to  7.17  per  cent  of  the  capitalization. 
The  excess  of  earnings  over  disbursements,  which  has  amounted 
each  year  since  1894  to  $100,000,000  or  more,  is  applied,  first,  to 
pay  the  interest  on  the  railway  debt ;  then,  except  that  a  small  sum 
($500,000)  may  be  used  to  meet  any  deficit  in  the  ordinary  state 
budget,  the  next  claim  is  three-quarters  of  one  per  cent  of  the  total 
railway  debt  (not  the  unextinguished  portion)  for  a  sinking  fund; 
then,  any  balance  may  be  invested  in  new  lines  or  be  paid  to  the 
government  for  general  expenses.  From  1881  to  1899  $350,000,000 
was  so  turned  over  to  the  government.  For  the  year  1904-5  the  net 
profits  amounted  to  $158,190,000. 

General  Conclusion. 

"The  results  of  the  nationalization  of  the  railroads  in  Prussia 
have  been  highly  satisfactory,"  says  Prof.  Emory  R.  Johnson,^' 
"particularly  in  its  financial  results."  Its  success  has  been  due  in 
no  small  part  to  the  well  articulated,  flexible  and  elastic  system  of 
administration.  A  definite  head,  well  defined  control  and  respon- 
sibilitf  all  the  way  down  from  minister  to  depotmaster,  with  ship- 
pers in  close  touch  with  the  railway  management,  result  in  rates 
which  change  with  the  changing  needs  of  commerce,  and  in  a 
service  adequate  for  Germany.  Preferential  rates  whenever  granted 
are  granted  openly,  after  full  and  public  discussion  ;  there  are  no 
secret  rebates.  Prussia  has  satisfactorily  solved  the  problem  of 
government  ownership.     Would  the  United  States  be  as  succesful? 

^"Geschaftlichte  Nachrichten,  p.   34. 

=»Geschaftliche  Nachrichten,  p.  26 ;  8,902,921.000  marks  for  standard  state 
railways,  besides  17,000,000  marlis  in  narrow  Ranse,  and  12,000,000  in  state 
"Anschhissliahnen"  not  in  the  general  system.     A  mark  equals  23.8  cents. 

""American   Railway  Transportation,   p.   342. 


(320) 


Prussian  Raihi'ay  Administration 


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yS  The  Annals  of  the  American  Academy 

BIBLIOGRAPHY 

The  following  references  were  found  most  useful  in  the  prepa- 
ration of  the  foregoing  article : 

1.  Geschaftliche  Nachrichten  (Staatseisenbahnverwaltiing),  Ausgabe, 
1906,  fiir  den  Bereich  der  vereinigten  preussischen  und  hessischen  Staatseisen- 
balinen.     Teil   I,   Betriebs-Ergebnisse.  Berlin,   1906. 

2.  Bericht  iiber  die  Ergebnisse  des  Betriebs  der  vereinigten  preussischen 
und  hessischen  Staatseisenbahnen  in  Rechnungsjahre,   1904.     BerHn,   1905. 

3.  Die  Verwaltung  der  Oefifentlichen  Arbeiten  in  Preussen,  1890-1900. 
BerHn,  1901.     Pp.  11-87  of  vahie;  many  good  charts  and  tables. 

4.  Vorschriften  fiir  die  Verwaltung  der  vereinigten  Preussischen  und  Hes- 
sischen Staatseisenbahnen.     Berlin,  1902. 

5.  Sammlung  von  Vorschriften  betreffend  die  Giitertarife.  (Preussische 
Staatseisenbahnverwaltung.)  Berlin,  1902.  Pp.  26-33,  49-52.  Very  useful 
pamphlet. 

6.  Deutscher  Eisenbahn-Giitertariff.  Teil  A,  Abteilung  B.  Berlin,  1906. 
Detailed  regulations  for  employees,  service,  etc. 

7.  Sonderabdruck  aus  Archiv  fiir  E'isenbahnwesen,  1905,  pp.  307-330.  See 
especially  pp.  311-315,  and  319-323.  Compares  the  administration  prior  to  1890 
with   that  following,   and  the  results   in   1905.     Good   general   discussion. 

8.  Maps  of  Prussian  railway  system,  1906,  etc.  (Ubersichtskarte  der 
Verwaltungs-bezirke,  etc.,  1906.) 

Secondary. 

9.  Report  of  the  Industrial  Commission,  Vol.  IX  (1901),  pp.  962-984. 
(B.  H.  Meyer.)  The  best  English  account  of  the  Prussian  railway  admin- 
istration,   1901. 

ID.  Meyer,   B.   H.     Annals   of  Amer.   Acad.     X,  389-423    (1897). 

11.  Cohn,  Gustav.     Journal  of  Pol.  Econ.     I,  172-192  (March,  1893). 

12.  Collier,  Robert.  Report  on  Prussian  Railways.  No.  574  of  (British) 
Diplomatic  and  Consular  Reports.     London,  1902. 

13.  Johnson,  Emory  R.     American  Railway  Transportation,  N.  Y.,   IQ03. 

Pp.  337-348. 

14.  Lotz,  Prof.  Walther,  Verkehrsentwickelung  in  Deutschland,  1800- 
1900.    Lieb  319,  1900.     Best  short  account  in  German. 


PRUSSIAN   RAILWAY   RATE-MAKING  AND  ITS 
RESULTS 


By  G.  G.  Huebner, 
University  of  Pennsylvania. 


The  State  of  Prussia  has  a  system  of  railways  more  than  21,000 
miles  (34,130.73  kms.^)  in  length,  owned  and  operated  by  the  gov- 
ernment. It  is  the  best  example  of  an  extensive  system  of  govern- 
ment railways;  and  ever  since  1880,  when  Prussia  actively  began 
the  policy  of  buying  up  the  large  private  railroads,  there  has  been 
constant  effort  to  perfect  the  all-important  work  of  rate-making. 

Fundamental  differences  clearly  exist  between  conditions  in 
the  United  States  and  Prussia.-  The  average  length  of  haul  in 
Prussia  is  but  70.7  miles,  as  compared  with  244.3  '"  ^^""^  United 
States.^  The  average  shipment  in  the  United  States  is  very  much 
larger,  partly  because  the  Prussian  railways  not  only  carry 
smaller  quantities  of  freight,  but  in  addition  they  do  a  parcel  busi- 
ness. Furthermore,  a  large  proportion  of  American  freight  consists 
of  raw  materials,  while  in  Prussia  a  larger  part  consists  of  high- 
grade  manufactured  products.  Items  of  income  as  well  as  of  ex- 
pense are  different  in  the  two  coimtries — wages,  building  materials, 
fuel  and  other  of  the  separate  factors  commanding  different  prices. 
In  the  passenger  business,  the  denser  and  lower  grade  of  traffic  is 
a  vital  difference.  Again,  the  huge  area  of  the  United  States  is  in 
striking  contrast  with  the  small  and  compact  area  of  Prussia.  There 
are,  moreover,  radical  differences  in  political  and  governmental 
conditions  in  the  two  countries,  that  require  careful  consideration 
by  those  who  are  studying  the  transportation  policies  of  Prussia 
and  the  United  States. 

Foreign  experience  in  government  rate-making  must  neces- 
sarily be  viewed  with  the  greatest  caution.    Yet,  though  bearing  in 

1  Berieht  uber  die  Ergebnisse  des  Betriebs  der  Vereinigten  Prenssischen  und 
Hessisehen   Staatseisenbabnen,   p.   6.     Figures  for  Marcb   31,   190.5. 

-Ibid.;  Die  Verwaltiing  der  Offentlichten  Arbeiten  in  Prenssen,  1890-1900; 
Prof.  W.  Lotz,  Verljehrsentwicklung  in  Deutscbland  ;  W.  C.  Noyes,  American  Railroad 
Rates,  Ch.  VIII. 

■  Year  1904.  the  railroads  of  the  United  States  being  considered  as  one  system. 

(323) 


8o  The  Annals  of  the  American  Academy 

mind  that  what  Prussia  has  accompHshed  does  not  demonstrate  that 
similar  accompHshments  could  be  here  attained,  it  is  pertinent,  in 
the  face  of  the  rapid  extension  of  government  ownership  in  foreign 
countries  and  the  occasional  waves  of  agitation  in  the  United  States, 
to  analyze  the  most  highly  developed  system  of  government  rate- 
making  in  the  world  and  to  study  its  results. 

I.     Rate  Administration  in  Prussia.* 

Before  1895  the  control  over  rates  and  their  promulgation  was 
decentralized.  The  Minister  of  Public  Works  was  finally  respon- 
sible, but  under  him  there  were  eleven  railway  directorates,  who 
were  advised  and  aided  in  the  immediate  making  of  rates  by 
seventy-five  administrative  district  officials  and  a  commission  of 
private  railways.  In  1895,  however,  the  administration  was  reor- 
ganized to  the  great  benefit  of  the  Prussian  rate  system. 

The  Minister  of  Public  Works  is  still  the  final  authority.  The 
directorates  have,  however,  been  reorganized  and  their  number 
increased  to  twenty-one.  Distributed  over  Prussia,  each  in  a  given 
area,  they  are  entrusted  with  the  immediate  work  of  rate-making. 
But  really  greater  influence  over  rates  than  is  exercised  by  the  direc- 
torates is  exerted  by  the  circuit  councils  or  "Bezirkseisenbahnrathe." 
They  are  boards  of  legal  standing  with  the  duty  of  thoroughly 
keeping  in  touch  with  commercial  and  industrial  conditions,  and  of 
advising  the  circuit  directorates  on  matters  important  in  rate- 
making. 

These  councils  (Bezirkseisenbahnrathe),  now  nine  in  number,' 
and  with  a  membership  consisting  of  representatives  of  industrial, 
commercial  and  financial  organizations,  have  made  it  largely  pos- 
sible to  bring  Prussian  rates  into  conformity  with  economic  needs. 
There  is,  also,  a  national  advisory  council,  similarly  constituted  and 
with  forty-two  members,  whose  duty  it  is,  at  least  twice  a  year,  to 
advise  the  central  administration  on  matters  of  rate-making,  just 
as  the  circuit  councils  do  in  the  case  of  the  directorates.  To  still 
further  facilitate  rate-making,  there  are  the  "general  conference," 

*  p..  II.  Meyer,  in  TT.  S.  Industrial  Commission,  Vol.  IX,  p.  911  ;  Die  Verwaltung 
(ler  OfPentlichen  Arbeiten  in  Prenssen  (15)01).  p.  r>?i  ;  Die  Entwickluns:  dei-  Outer- 
tarife  (Berlin,  in04),  pp.  11-12:  W.  Iloff,  "Zur  Wiederkehr  des  zehnten  .Tahrestases 
der  Nenordnung  der  preussischen  Staateseisenbahnverwaltnng,"  in  the  Arcbiv  fur 
Eisenbahnwe.sen.    100.5,    pp.    307-330. 

•Die   Verwaltung,   etc.,   p.    53    (Ihid.). 

(324) 


Prussian  Raihvay  Rate-Making  8i 

composed  of  representatives  of  all  German  railroads ;  the''tariflf 
commission,"  which  is  a  subordinate  part  of  the  general  conference 
and  which  considers  petitions  from  shippers ;  and  the  "committee 
of  shippers"  which  does  much  the  same  work  as  the  tariff  commis- 
sion, but  from  the  standpoint  of  the  public.  The  Imperial  Govern- 
ment, through  the  "Reichs  Eisenbahnamt,"  retains  the  constitu- 
tional right  to  control  the  general  policy  of  rate-making  in  Prussia, 
as  well  as  in  all  other  German  states. 

The  Prussian  railway  officials  have  long  seen  that  if  they  wish 
to  avoid  a  system  so  rigid  as  to  be  fatal  to  industry,  there  must  be 
centralization  of  rate  administration,  and  co-operation  between  the 
shippers  and  all  the  railroads  of  Prussia.  The  result  is  a  centraliza- 
tion of  rate-making  in  the  Minister  of  Public  Works,  and  the  dis- 
trict directorates,  advised  by  the  legally  constituted  national  and 
circuit  councils,  which  are  bodies  designed  to  secure  the  industrial 
and  commercial  information  required  for  the  intelligent  adjustment 
of  rates  to  economic  conditions. 

II.     The  Prussian  Freight  Rate  System. 

A  mistaken  idea  has  been  fostered  by  many  persons  that 
Prussian  freight  tariffs  have  of  necessity  been  reduced  to  a  rigid 
distance  basis ;  and  that  they  have  approached  simplicity  itself 
because  a  yard-stick,  instead  of  industrial  conditions  and  human 
judgment,  has  seemingly  been  the  determining  factor.  It  is  true 
that  the  schedules  are  somewhat  simpler  than  those  in  the  United 
States,  largely  because  a  small  and  compact  country  permits  greater 
simplicity,  but  nothing  is  more  fallacious  than  the  notion  that  dis- 
tance is  the  sole  factor,  and  that  industrial  and  commercial  needs 
are  disregarded.  If  any  generalization  is  permissible,  it  is  that 
distance  receives  greater  and  commercial  needs  slightly  less  atten- 
tion than  are  accorded  them  in  the  United  States. 

The  Normal  Freight  Schedules.''' — The  class  rate  schedules  of 
Prussia,  constituting  the  simplest  part  of  the  freight  tariff  system, 
are  given  in  the  following  table : 

•  Sammlung  von  Vorschriften  betreffend  die  Gutertnrifp    (1002),  p.   10. 


(^9 


82 


The  Annals  of  the  American  Academy 


Normal  Freight   Transportation  Charge. 


Less  than  Car-Load  Lots. 

Car-Load  Lots. 

DliTANCKS. 

Fast  Freight. 

Slow  Freight. 

General. 

Special. 

General 
tast 
Fgiit. 

Special 
Fast 
Fght. 

General 
Slow 
Fght 

Special 
Slow 
Fght. 

A, 

B 

Aa 

I 

II 

III 

22 
20 
18 
10 
14 
12 

Ra'es  in  Pfen- 
nig per  Kilo- 
mete  . 

- 

1  to  50  km 

11 
10 
9 
8 
7 
6 

61  to  200  km.             

. ... 

201  to  300  km 

301  to  400  km.                         

401  to  500  km 

Over  500  k  ii                         .           . 

All  distam-es 

87      1  6.7 

6 

5 

4.5 

3.5 

1  to  100  km 

2.6 

Oyer  100  km 

!■■•■ 

2.2 

20 

22 
24 
26 
28 
30 
32 
34 
36 
38 
40 

Dispa'  ch  Charge  in  Pfennig 
per  100  r,  ilograms. 

8 
9 
10 
11 
12 
12 
12 
12 
12 
12 
12 

)• 

1?! 

6 

9 

12 

6 

9 

12 

I  to  10  km 

10 
11 
12 
13 
14 
15 
16 
17 
18 
19 
20 

11  to  20  km 

21  to  30  km                       .        ... 

a 

31  to  40  km 

41  to  50  km 

51  to  60  km 

61  to  70  km 

71  to  80  km — 

81  to  90  km 

u 

91  to  100  km 

Over  100  km 

12 

Separate  classifications  are  made  for  piece  goods  ("Stiickgut- 
klassen")  and  carload  lots  ("Wagenladungsklassen").  Class  rates 
are  divided  into  fast  freight  or  express  rates  and  slow  freight  rates. 
Fast  freight  rates  are  again  divided  into  a  general  fast  freight  class 
and  a  special  class  for  specified  freight,  such  as  bees,  bread,  butter, 
fish,  clams,  vegetables,  milk,  fresh  berries  and  plants.'  Slow  freight 
for  less  than  carload  lots  is  also  divided  into  a  general  class  and  a 
special  class  for  specified  piece  goods,  already  containing  twenty- 
eight  large  specifications  and  many  subdivisions,  such  as  given 
kinds  of  foodstuffs  and  fodder,  wood  and  woodenware,  metal  and 
metal  wares,  seeds,  roofing,  etc.^  The  classification  for  carload  lots 
is  divided  into  two  general  classes  and  three  special  ("spezial- 
tarife)."  General  class  Ai  indicates  the  rates  for  general  freight 
weighing  less   than    io,ooo   but   more   than    5,000  kilograms ;   and 

^  Over   720   km.    as   in    general    slow   freight. 

•Deutscher  Eisenliahn  Oiitertarife.  Teil  I.  Aliteiliins:  B,    (inOfi). 
» Eisenbahn-giitertarif,  Teil    I,   Aliteilnng  B.   pp.   25-27    (1006). 

(326) 


Prussian  Railway  Rate-Making  83 

class  B  indicates  the  rate  for  general  freight  weighing  at  least 
10,000  kilograms.  The  "spezialtarife"  are  more  complicated,  each 
indicating  the  special  carload  rate  on  some  specified  commodity. 
Twenty-eight  pages^"  of  the  German  tariff  schedule  for  1906  are 
given  to  the  enumeration  of  the  commodities  coming  within  classes 
I,  II  and  III.  Generally,  class  I  includes  raw  products,  class  II 
intermediate  products  and  class  III  manufactured  products;  but 
there  are  many  exceptions  to  this,  and  products  are  at  times  shifted 
from  one  class  to  another.  "Spezialtarif"  A2  covers  freight  in 
special  tariffs  I  and  II,  when  the  weight  is  at  least  5,000  but  less 
than  10,000  kilograms.  Goods  in  class  III,  with  weight  less  than 
10,000  but  over  5,000  kilograms,  come  within  special  tariff'  II. 

As  the  table  indicates,  the  freight  charge  for  goods  carried 
under  the  normal  class  rates  consists  of  two  items:  (i)  A  trans- 
portation charge  for  1/  e  actual  carrying  of  the  freight,  and  (2)  a 
dispatch  fee  as  a  terminal  charge.  For  less  than  carload  lots  of 
special  fast  freight  and  general  freight,  the  transportation  charge 
is  the  same, — decreasing  from  1 1  pfennig  per  metric  ton  kilometer 
for  the  first  50  kilometers  (3.8  cents  per  short  ton  mile)  to  6 
pfennig  for  all  distances  over  500  kilometers  (2.076  cents  per  ton 
mile).  For  example,  if  special  fast  freight  or  general  slow  freight  is 
shipped  a  distance  of  400  kilometers,  it  pays  a  rate  of  11  pfennig  per 
metric  ton  kilometer  for  the  first  50  kilometers,  10  for  the  next  15^, 
9  for  the  next  100.  and  8  pfennig  for  the  last  100  kilometers.  General 
fast  freight  pays  just  twice  this  transportation  charge.  The  rate  for 
special  slow  freight  is  2.76  cents  per  ton  mile  for  any  distance  up  to 
726  kilometers,  and  then  it  becomes  the  same  as  the  rate  on  general 
slow  freight.  The  rates  for  carload  lots  Ai  and  B  are  2.3  and  2.07 
cents,  respectively,  per  ton  mile  for  all  distances ;  those  for  special 
classes  A2,  I  and  II  are  1.7,  1.55  and  1.21  cents,  respectively,  per 
ton  mile  for  distances  up  to  100  kilometers,  and  .yS  cents  per  ton 
mile  for  all  distances  thereafter.  The  dispatch  fees  are,  also, 
graded  according  to  distance  up  to  100  kilometers.  Carload  lot  At 
and  all  less  than  carload  lots  except  general  fast  freight,  pay  the 
same  terminal  charges ;  general  fast  freight  pays  double  this ;  class 
B  pays  a  charge  which  remains  unchanged  for  distances  over  50 
kilometers ;  and  all  the  special  carload  classes  are  given  identical 
dispatch  fees. 

"/bid.,  pp.  28-56. 

(327) 


84  The  Annals  of  the  American  Academy 

The  Live  Stock  Tariff. — The  German  government  publishes  a 
separate  schedule  of  rates  applicable  to  live  stock. ^^  The  option  is 
given  to  the  shipper  either  to  pay  his  rate  on  the  basis  of  number 
of  animals  shipped,  or  of  floor  space  occupied.  On  the  basis  of 
numbers,  the  rate  varies  according  to  distance,  size  and  kind  of 
animals,  total  number,  and  kind  of  car  and  train  selected.  On  the 
basis  of  floor  space  occupied,  the  rate  is  per  square  meter  and  varies 
according  to  distance,  size  and  kind  of  animals,  kind  of  car  and 
train  selected,  and  for  some  animals,  such  as  horses,  is  different 
east  than  west  of  a  line  drawn  through  Leipsig  and  Halle.  In  every 
instance  there  is  a  dispatch  fee  in  addition  to  the  transportation 
rate. 

The  "Aiisnahmstarife." — Sixty-three  per  cent  of  the  Prussian 
traffic  does  not,  however,  come  within  the  classified  schedules,  but 
under  special  commodity  rates  or  "ausnahmstarife."  The  practice 
of  giving  exception  rates  to  selected  commodities  is  the  most  striking 
part  of  the  Prussian  railroad  rate  system.  Professor  W.  E.  Lotz 
aptly  calls  it  a  kind  of  "Merkantelsystem."^-  With  the  deliberate 
purpose  of  regulating  industry  and  commerce  through  the  powerful 
medium  of  freight  rates,  sixty-three  per  cent  of  the  traffic  is  given 
rates  generally  about  one-half  as  high  as  the  classified  rates  and 
seemingly  unusually  low  as  compared  with  the  rates  enforced  in 
neighboring  countries.  The  rates  are  given  to  build  up  particular 
industries,  to  promote  specified  districts,  to  protect  German  rail- 
roads against  foreign  railways  and  waterways,  to  overcome  emer- 
gencies, to  build  up  German  seaports,  to  promote  the  German 
export  trade  and  to  discourage  the  entrance  of  specified  imports.^' 

To  build  up  the  shipbuilding  industry,  iron  and  steel  is  given 
an  exception  rate  from  producing  points  to  the  shipyards.  Excep- 
tion rates  on  many  raw  materials  and  on  fertilizers  are  granted  to 
aid  agriculture.  Fuel  receives  a  low  rate  to  foster  manufacturing 
in  particular  and  all  industry  in  general.     A  special  rate  is  given 

"  Deutscher  Eisenbahn-Tiertarif.  Teil  I.  April,  lf)06.  See  also,  British  Diplo- 
matic and  Consular  Rept.  No.  574,  Misc.  Series, — Report  of  Prussian  Rys,   (1902). 

"  Verkehrsentwicklung  in  Dentschland,  p.  66. 

"  Die  Verwalten  der  Offentlichen  Arbeiten  in  Preussen,  pp.  272-301 ;  Ergeb- 
nlsse  des  Betriebs  der  Preussischen  und  Ilessiscben  Staatsbahnen  (1904),  p.  168; 
Die  Entniickelung  der  Giitertarife  der  Preussisch-Hessischen  Staatseisenbahnen,  Ber- 
lin, 1904,  p.  1.5  ;  Solomon  Huebner,  Annals  American  Academy,  Nov.,  1904,  Promo- 
tion of  Commerce  in  Germany;  British  Rept.  on  Prussian  Rys.  (1902),  p.  1.5;  Wie- 
lenfeld ;  Die  Nordwesteuropiiischen  Welthafen,  pp.  3.TJ-3  ;  Lotz ;  Verkehrsentwick- 
lung in  Deutschland   (1900),   p.  G4. 


Prussian  Railway  Rate-Making  85 

to  cotton  from  German  harbors  to  Silesia  in  order  to  build  up  the 
textile  trades  of  Silesia. 

To  promote  particular  districts,  coal,  coke  and  briquettes  from 
Westphalia  to  Hamburg  and  ports  on  the  Weser  are  given  lower 
rates,  so  as  to  counteract  foreign  competition  at  these  ports  and  to 
develop  Westphalia.  Likewise,  coal  for  steamers  from  Upper 
Westphalia  to  Danzig,  East  and  West  Prussia  and  Pomerania 
receives  a  lower  rate.  A  typical  instance  of  "ausnahmstarife,"  to 
draw  traffic  from  foreign  railways  and  waterways  to  Prussian  rail- 
ways, is  the  low  rate  on  sugar  from  points  in  Russian  Poland  to 
Danzig  and  Konigsburg,  so  as  to  prevent  the  sugar  from  going  via 
Libau,  Russia.  Likewise,  the  low  rates  on  hemp,  flax,  etc.,  from 
Russia  to  Germany,  on  cotton  from  Russian  points  to  German 
harbors,  and  on  petroleum  from  Roumania  to  Germany  are  typical 
instances.  Emergency  rates  have,  also,  been  occasionally  granted. 
In  1 89 1  special  rates  on  grain  were  promulgated  for  long  distances 
because  of  a  crop  failure;  in  1893  a  crop  failure  induced  a  special 
rate  on  straw  and  fodder;  in  the  winter  of  1898-9  an  emergency 
rate  on  potatoes  was  granted  to  East  Prussia;  and  in  1899  a  special 
rate  w^as  made  on  all  food  and  fodder  destined  to  the  Speerwald. 

More  frequent  are  the  "ausnahmstarife"  designed  to  build  up 
German  harbors.  Prussia  has  granted  preferential  rates  to  Ham- 
burg and  Bremen  so  as  to  protect  them  against  the  harbors  of 
Northwest  and  Southwest  Europe,  even  at  the  expense  of  Prussian 
harbors.  Preferential  rates  are  granted  on  cotton,  tobacco,  fish, 
coffee,  rice  and  other  products  in  the  trade  between  the  German  coast 
and  the  Rhine- Westphalia  district  so  as  to  draw  trade  from  the  ports 
of  Holland  and  Belgium.^*  Similar  rates  are  enforced  on  numerous 
conmiodities  which  are  sent  to  Austro-Hungary,  Russia  and  Rou- 
mania over  German  railways.  In  the  aggregate  all  these  rates  aim 
to  build  up  the  German  North  Sea  harbors  at  the  expense  of  Dutch 
Belgian,  Russian  Black  Sea  and  Austro-Hungarian  ports. 

Closely  allied  to  these  preferential  rates  and  even  more  numer- 
ous are  the  rates  designed  to  conform  with  the  German  tariff  poHcy, 
in  order  to  regulate  exports  and  imports.  The  Levant  and  East 
African  "ausnahmstarife"  give  rates  from  one-third  to  one-fifth 
as  high  as  British  rates  from  interior  points  to  Piraeus,  Salonica, 

"  Annals   American   Academy.   Nov.,   1904,   Solomon   Huebner,   p.    106 ;    Wleden- 
feld,   Die  Nortwesteuropaische  Weldliafen,   p.   322. 

(329) 


86  The  Annoh  of  the  American  Academy 

Constantinople,  Odessa,  Alexandria  and  numerous  other  places  in 
the  Levant,  East  Africa  and  points  on  Oriental  and  East  African 
railroads.  Likewise,  to  meet  Austro-Hungarian  sugar  competition, 
preferential  rates  are  given  to  sugar  sent  to  Switzerland ;  to  pro- 
mote exports  of  corn,  rape  seed,  malt,  milk  produce,  etc.,  an 
export  rate  is  granted  to  all  nations,  except  Russia,  bordering  on 
Germany ;  export  rates  are  enforced  on  brown  coal  and  railway 
and  tramway  rolling  stock  to  Roumania,  on  pig  iron  from  Upper 
Silesia,  Westphalia  and  Nassau  to  Austria,  on  various  specified 
classes  of  iron  and  steel  destined  to  foreign  countries  and  German 
colonies,  so  as  to  meet  the  competition  of  Great  Britain,  and  on 
liquor  and  spirits  to  Switzerland  and  France,  iron  and  steel  to 
Denmark  and  Russia,  iron  ore  to  Bohemia,  cotton  to  Russia  and 
starch  to  Italy.  These  are  the  main  examples  of  how  the  Prussian 
government  is  employing  its  railroads  to  foster  her  export  trade. 
A  typical  instance  of  the  attempt  to  bar  specified  imports  is  the 
merely  normal  rate,  from  seaports  to  the  interior,  on  agricultural 
produce  which  competes  with  German  farmers,  as  contrasted  with 
the  reduced  rates  of  agricultural  produce  within  Germany  so  as  to 
foster  the  German  agricultural  industries.^* 

in.     The  System  of  Passenger  Fares}* 

The  general  schedule  of  passenger  fares  which  was  enforced 
on  Prussian  state  railways  before  October,  1906,  is  given  in  the 
following  table: 

Normal  Passenger  Schedule}'^ 

In  Pfennig  per  Person — Kilometer. 
I   Class.     11  Class.  Ill  Class.  IV  Class. 

One-way   tickets — express   train 9.0  6.67  4.67 

One-way  tickets- — passenger  train 8.0  6.0  4.0  2.0 

Return   tickets    6.0  4.5  3.0 

Sunday    tickets     4.0  3.2  2.0 

Summer  and  tourist  tickets   6.0  4.5  3.0 

Season  tickets  6.3  4.67  3.27 

Workmen's    tickets    .  .  .  .  i.o 

Baggage  to  the  extent  of  25  kilograms  is  permitted  to  go  free  in  classes  I, 
II  and  III. 

"  Lotz.   p.   GR. 

'*  Verwaltunsr  der  Offentlirhen  Arheiten  in  Preussen.  p.  .54;  .Johnson.  American 
Railway  Transp..  p.  206:  Denkschrift  iiber  die  Reform  der  Personen  und  Gepack' 
tarife,   by  the  Minister  of  Public  Works    (100.-i>,   pp.   14-23. 

"  Die  Verwaltung  der  Offentlichen  Arbeiten,  p.   54. 

(330) 


Prussian  Railway  Rate-Making  87 

There  are  four  classes  of  passenger  service  for  ordinary  pas- 
senger, and  three  for  express  trains,  and  fares  ranged  respectively 
from  3.0  to  0.77  cents  per  mile  and  from  3.45  to  1.79  cents  per 
mile.  Return  tickets  were  reduced  to  ij^  times  the  one-w^ay  tickets, 
and  workmen  could  travel  for  .38  cents  per  mile  on  special  fourth- 
class  tickets.  Many  exceptions  were  made  to  the  regular  passenger 
fares.  Children  below  four  years  of  age  could  travel  free  of  charge 
and  those  below  ten  years  for  half  the  regular  fare.  School  children, 
Sunday  travelers,  summer  tourists,  groups  of  persons,  holders  of 
season  tickets,  visitors  of  educational  institutions  and  bathing  estab- 
lishments, invalids  who  have  been  in  war,  German  soldiers,  and 
inmates  of  hospitals  and  institutions  for  sick,  blind,  deaf  and  dumb 
and  orphans  were  given  special  fares.  With  all  tickets  in  the  first 
three  classes  25  kilograms  of  baggage  were  carried  free  of  charge. 

In  1906  several  changes  went  into  effect.  Return  tickets  were 
abolished ;  but,  to  compensate  for  this,  one-way  fares  in  II  and  III 
class  service  on  ordinary  accommodation  trains  were  reduced  to 
the  fares  which  were  formerly  granted  on  return  tickets.  Fares 
in  class  I  were  reduced  to  7  pfennig  and  in  class  IV  remained  un- 
changed. Instead  of  a  separate  schedule  of  fares  for  fast  trains,  a 
fixed  difference  was  established  between  fast  and  slow  trains,  and 
baggage  to  the  extent  of  25  kilograms  is  no  longer  carried  free  of 
charge.  With  these  alterations,  the  above  schedule  is  now  enforced 
on  Prussian  railways.  The  changes  were  primarily  influenced  by 
the  tax  which  in  Prussia  is  levied  on  passenger  tickets. 

A  separate  schedule  of  fares  is  provided  for  the  Berlin  Circle 
Railway  and  suburban  traffic. ^^  In  case  of  the  Circle  Railway 
traffic,  a  fare  of  15  pfennig  II  class  and  10  pfennig  III  class  is 
charged  for  any  distance  up  to  five  stations,  and  double  this  fare  is 
charged  for  greater  distances.  In  the  suburban  traffic  15  pfennig 
II  class  and  10  pfennig  III  class  is  charged  for  distances  of  from 
I  to  7.5  kilometers,  double  this  for  distances  of  from  7.6  to  15 
kilometers,  and  treble  it  for  distances  of  from  15.1  to  20  kilometers. 
For  distances  greater  than  this,  4.5  pfennig  are  added  in  class  II 
and  3  pfennig  in  class  III.  With  one  exception,  only  second  and 
third  class  service  is  given  in  this  Berlin  city  and  suburban  traffic. 

The  fares  on  the  Hamburg-Altonaer  Railway,^®  like  the  Berlin 

"  Verwaltung   der    Offentlichen    Arbeiten,   p.    .'57. 
"/ftid.,   pp.   57-58. 

(33O 


88  The  Annals  of  the  American  Academy 

Circle  Railway  fares,  are  on  the  two-zone  basis,  but  with  three, 
instead  of  two,  classes  of  service..  For  distances  not  exceeding  4 
kilometers  the  fares  are  20  pfennig  I  class,  15  pfennig  II  class  and 
10  pfennig  III  class.  For  greater  distances  the  fares  are  35  pfennig 
J  class,  20  pfennig  II  class  and  15  pfennig  III  class.  The  result  on 
both  the  Berlin  and  Hamburg-Altonaer  railways  is  a  schedule  of 
fares  at  once  more  uniform  and  lower  than  the  normal  fares  on 
Prussian  railways. 

IV.     Results,  Comparisons  and  Conclusions. 

When  the  Prussian  policy  of  state  railroads  was  inaugurated 
it  was  officially  declared  that  the  railways  were  to  be  so  managed 
(i)  that  the  people  were  to  obtain  a  railroad  system  which  would 
lead  to  industrial  development,  and  (2)  that  the  finances  of  the 
state  were  not  thereby  to  be  impaired.^"  In  the  management  of  the 
roads  it  was,  furthermore,  the  original  intention  of  Chancellor 
Bismarck  ( i )  that  while  the  system  was  being  built  and  enlarged  the 
railroads  were  to  be  operated  for  profits,  just  as  a  private  enter- 
prise, (2)  that  as  this  was  being  completed  the  rates  were  to 
gradually  approach  the  cost  of  transportation,  and  (3)  that  finally 
the  rates  were  to  be  merely  sufficient  to  meet  the  cost  of  transporta- 
tion and  were  to  be  established  into  fixed  schedules.^^  During  the 
development  of  the  Prussian  rate  system  the  policy  of  the  adminis- 
tration has  been  changed,  and  it  has  been  found  advisable  and 
practicable  to  fulfil  some  of  these  declarations  and  to  discard  others. 
Prussian  rate-making  has  its  flaws  as  well  as  its  virtues. 

The  Movement  of  Freight  Rates. — Since  the  widespread  intro- 
duction of  state  management,  freight  rates  have  followed  a  down- 
ward course.  Reductions  have  been  made  both  in  the  classifications 
and  in  the  rates  themselves.  Many  new  items  have  been  added  to 
the  classifications  and  large  reductions  have  been  obtained  by  shift- 
ing articles  from  higher  to  lower  classes.  In  this  way  a  reduction  of 
25  per  cent  has  been  secured  since  1877  in  the  case  of  articles  shifted 
from  class  B  to  special  tariff  I,  42  per  cent  in  changes  from  class 
B  to  II,  as  much  as  63  per  cent  in  changes  from  class  B  to  III,  22 
per  cent  in  shifts  from  class  I  to  II,  as  much  as  51  per  cent  in 
changes  from  class  I  to  III,  and  from  26  to  37  per  cent  reduction 

"Die  Entwickhmg  der  Giitertarife    (Berlin,  1904),  pp.  1-6. 
•»Prof.   Lotz,  pp.   57-58. 

(332) 


Prussian  Raikvay  Rate-Making  Sg 

in  changes  from  class  II  to  III.--  The  extent  to  which  reductions 
have  been  made  by  placing  general  package  freight  into  special 
classes  is  seen  in  the  increase  in  the  number  of  special  tariff  items. 
In  1878  the  "spczialtarife"  embraced  160  items,  but  by  1904  this 
had  increased  to  364. 

The  greatest  activity  of  the  administration  has,  however,  been 
in  the  enlargement  of  the  traffic  shipped  under  "ausnahmstarife." 
Marked  reductions  have  been  made  in  this  way.  From  1879  to  1903 
coal  shipped  from  the  Ruhr  district  has  had  rate  reductions  amount- 
ing to  from  10.4  to  26  per  cent;  coal  shipped  from  Upper  Silesia, 
likewise,  has  witnessed  reductions  of  from  9.7  to  42.2  per  cent,  from 
Lower  Silesia  of  from  5.0  to  25.2  per  cent,  and  from  the  Sahr 
district  of  from  8  to  2y  per  cent.  Rates  on  iron  ore  shipped  between 
specified  points  have  been  reduced  by  from  33  to  44  per  cent,  rates 
on  pig  iron  by  from  10  to  35  per  cent,  on  potassium  salt,  since  1882, 
by  from  29  to  47  per  cent,  and  on  fertilizing  lime  by  from  40  to 
53  per  cent.^' 

Rate  comparisons  are  at  best  misleading,  and  charges  per  ton 
mile  make  such  comparisons  even  more  questionable.  Comparing. 
however,  the  Prussian  per  ton  mile  charge  with  those  of  neigh- 
boring countries,  it  is  found  that  in  1902  the  charge  in  Prussia  was 
1.238-*  cents,  in  France  1.33,  in  Austria' 1.26  and  in  Hungary  1,24 
cents.^*  For  the  same  year  the  charge  per  ton  mile  in  the  United 
States  was  .76-^  cents.  Though  this  marked  difference  between 
Prussian  and  American  rates  is  made  misleading  by  the  prevalence 
of  bulky  freight  and  long  distances  in  the  United  States,  yet  not 
even  the  German  officials  deny  that  American  freight  rates  are 
generally  lower. ^^  The  somewhat  lower  rates  in  Prussia  than  in 
the  surrounding  countries,  of  more  like  economic  conditions,  is, 
however,  indicative  of  the  progress  made  by  the  Prussian  state 
railroads.  Likewise,  the  fact  that  "on  the  Prussian  private  roads 
much  higher,  often  very  much  higher,  normal  rates''-^  are  enforced 
tlian  on  the  Prussian  state  railroads  and  that  the  rate  per  ton  pet 
kilometer  is  slightly  higher  on  the  government  roads  of  neighboring 

"Die  Entwicklung  der  Giitertarife   (Berlin,  1904),  p.  14. 

*^Ibifl..  pp.   18-20. 

^Ihid..  p.  2'1. 

"  H.  T.   Newoomh.   Railway  Rate  Regulation  In  Foreign  Countries,  p.  81. 

".78   cents   in   1904. 

"  Entwiclilung  der  Giitertarife,  p.  23. 

»  Tbid..   p.    22. 


90  The  Annals  of  the  American  Academy 

German  states  are  again  indications  that  the  Prussian  state  railroad 
rates  are  low  as  compared  with  the  rates  of  other  European  rail- 
roads.-" 

The  Movement  of  Passenger  Fares. — On  the  one  hand,  while 
Prussian  freight  rates  are  higher  than  American  freight  rates,  Prus- 
sian passenger  fares  are  distinctly  lower.  The  average  fare  per 
passenger  mile  in  the  United  States  is  2.006  cents,  while  in  Prussia 
it  is  but  .93  cents. ^"^  This  great  difference  is  partly  because  out  of 
the  8,343,651,715  person  kilometers^^  of  Prussian  travel  in  1904, 
7,875,546,842  were  within  the  two  lower  classes,  partly  because  of 
the  multitude  of  special  fares,  and  partly  because  the  Prussian  figure 
includes  a  large  amount  of  suburban  travel  which  in  the  United 
States  is  handled  by  street  car  companies. ^- 

On  the  other  hand,  while  Prussian  freight  rates  are  steadily 
declining  the  passenger  fares  in  the  general  schedules  do  not 
decline  as  rapidly.  The  earnings  per  passenger  mile  decrease,  but  it 
is  due  largely  to  the  special  fares  and  the  increased  travel  in  the 
lower  classes — not  to  a  reduction  of  the  general  fares.  In  conse- 
quence of  this,  in  spite  of  the  low  general  level,  there  is  not  the  same 
contentment  as  in  the  case  of  freight  rates.  The  situation  has,  per- 
haps, been  somewhat  changed  by  the  reform  of  1906."" 

Industrial  and  Commercial  Results. — In  the  United  States  the 
predominating  forces  in  the  determination  of  freight  rates  have 
been  commercial  and  industrial.  Many  persons,  blinded  by  the 
presence  of  political,  social,  educational  and  military  motives  and 
the  element  of  distance  which  have  influenced  the  policy  of  Prussian 
rate-making,  have  been  led  to  believe  that  freight  rates  in  Prussia 
retard  the  growth  of  industrial  and  commercial  interests.  Pages 
of  scholastic  indictment  have  been  written  against  the  prevalence 
of  distance  considerations.  But  such  charges  hold  only  to  a  limited 
extent.  Distance  and  mechanical  uniformity  are  over-important 
only  in  case  of  the  classified  schedules,  and  that  is  why  the  normal 
schedules  are  the  weakest  part  of  the  Prussian  rate  system.  Freight 
shipped  under  these  rates  occasionally  finds  difficulty  in  going  to 

^  Russian    rates    .Tre    excepted,    because    of    the    great    preponderance    of    long- 
distance hauls 

^»  Ersebnisse  des  Betriebs,  etc.    (1904),  p.   45. 

"71/id  ,  p.   43 

»*Prof    E.   R.   .Tohnson.  American  Railway   Transportation,   p.   296. 

«*  Lotz,   p.    69 ;   also,   Denkschrift   uber   die   Reform   der   Personen   und   Gepack- 
tarife  (1905). 

(334) 


Prussian  Railway  Rate-Making.  91 

distant  markets ;  and  yet  it  must  be  borne  in  mind  that  the  effect 
of  distance  considerations  in  a  small  and  compact  country  such  as 
Germany  cannot  be  judged  by  the  probable  effect  they  might  have 
in  shipments  from  Chicago  to  New  York.  The  far  greater  impor- 
tance of  distance  in  the  normal  tariffs  of  Prussia  than  even  in  the 
class  rates  of  the  American  trunk  line  district  causes  them  to  yield 
less  readily  to  commercial  demands;  but  they  are  not  "iron-clad." 
This  is  due  to  the  constant  watchfulness  of  the  twenty-one  railroad 
directorates,  the  nine  circuit  councils,  the  "landeseisenbahnrath,"  the 
general  conference,  tariff  commission  of  railways  and  the  committee 
of  shippers.  These  destroy  much  of  the  rigidity  which  would  other- 
wise prevail. 

Chancellor  Bismarck's  plan  to  reduce  all  traffic  to  a  fixed 
schedule  has  wisely  been  abandoned,  as  the  administration  soon 
found  it  incompatible  with  the  promise  to  promote  industry.  The 
distinct  tendency  is  toward  the  growing  adoption  of  the  "aus- 
nahmstarife."  As  was  shown  above,  many  of  these  have  been 
promulgated  for  the  special  purpose  of  building  up  particular  indus- 
tries and  business  in  general.  Largely  because  of  the  preferential 
rates  the  coal  traffic  in  the  Ruhr  district^*  was  swelled  from  20,309,- 
311  to  65,583.430  tons,  or  by  over  223  per  cent,  in  Upper  Schlesien 
by  over  183.5  P^*"  cent,  in  Lower  Schlesien  by  over  115  per  cent  and 
in  the  Sahr  district  by  over  124  per  cent.  Likewise  the  traffic  in 
German  pig  iron  increased  by  over  350  per  cent,"'  and  in  potassium 
salt  by  over  549  per  cent.^^  These  are  examples  of  the  promotion 
of  special  industries.  That  industry  in  general  has  not  been  retarded 
is  shown  by  the  growth  of  the  total  Prussian  freight  traffic  from 
8,903,091,000  ton  kilometers  in  1879  to  30,592,390,130  in  1904." 

The  building  up  of  export  trade  and  North  German  harbors, 
while  partly  influenced  by  political  considerations,  has  benefited  not 
only  Prussia  but  the  industry  and  commerce  of  all  Germany.  Low 
rates  on  particular  commodities  to  foreign  and  colonial  markets 
have  stimulated  German  exports  and  like  a  tariff  wall  have  partly 
protected  these  industries  against  foreign  competition.  Contrary 
to  the  original  plans  of  Bismarck,  these  rates  tend  to  build  up  large 
cities ;  but  this  has  been  more  at  the  expense  of  foreign  seaports 

"  Entwicklung  der  Gutertarife,   p.   18. 

*»Ihifl.,  p.   19. 

M/bid.,   p.    20. 

•^  Die  ErKebnlsse  des  Betriebs,  etc.    (1004).  p.   165. 

(335) 


92  The  Annals  of  the  American  Academy 

than  at  the  expense  of  smaller  German  cities.  Whether  or  not  this 
is  advisable,  the  building  up  of  large  cities  has  been  a  less  marked 
result  of  freight  rates  in  Germany  than  in  the  United  States.  It  is 
also  true  that  political  influences  are  present ;  perhaps  this  would 
be  fatal  to  government  rate-making  in  the  United  States,  but  in 
Prussia  it  has  chiefly  taken  this  form  of  promoting  exports,  and  in 
so  doing  has  benefited  German  industry. 

The  policy  of  the  Prussian  government  has  been  to  build  up 
river  and  canal  transportation  side  by  side  and  in  co-operation  with 
the  state  railroads.  For  example,  from  1890  to  1900,^^  the  state 
expended  10,831,100  marks  for  improving  the  Rhine,  795,000  for 
the  Ems,  401,500  for  the  Weser,  3,631,100  for  the  Elbe,  3,403,700 
for  the  Oder,  87,359,700  marks  for  the  construction  and  improve- 
ment of  canals,  and  31,022,300  marks  for  the  canalization  of 
streams.  This  promotion  of  water  transportation  is  not  because 
of  any  failure  of  the  Prussian  railways, ^^  but  because  certain  state 
officials  believe  that  canals  are  desirable  for  the  transportation  of 
bulky  products  over  long  distances,  and  for  military  purposes. 
River  and  canal  rates  in  Germany  are  generally  about  one-third  as 
high  as  railway  rates,*"  largely  because  of  these  natural  advantages 
and  because  they  are  based  upon  cost  of  maintenance,  while  the 
railway  rates  are  partly  based  upon  profits.  It  is  the  policy  of  the 
state  to  operate  both  the  waterways  and  the  railways,  and  through 
their  unified  activity  to  promote  German  industry.  Whatever  may 
be  the  wisdom  of  this  policy,  the  revival  of  canal  construction  does 
not  indicate  the  industrial  and  commercial  failure  of  the  state 
railways. 

Conflicts  of  sectional  interests  sometimes  prevent  a  change  of 
railroad  rates  to  conform  strictly  with  industrial  needs,  but  this  is 
true,  also,  in  the  United  States.  The  merchants  in  Prussia  are 
satisfied  with  the  present  rates  and  their  downward  tendency  as  com- 
pared with  previous  rates ;  and,  strange  to  say,  they  praise  the 
relative  stability  of  Prussian  rates*^  as  loudly  as  many  Americans 
laud  the  elasticity  of  American  rates.     Commercial  and  industrial 

*»  Die  Verwaltung  der  Offentlichen   Arbeiten.  pp.   150-176. 

"Govt.  Regulation  of  Rw.v.  Rates.  K.  TI.  Meyer,  in  Jour,  of  Pol.  Econ.,  Feb., 
1906. 

"Annals  American  Academy,  Noy.,  1904,  p.  104,  S.  Huebner,  Relation  of  the 
Government  in  Germany  to  the  Promotion  of  Commerce. 

"Die  Entwicklung  der  Gutertarife,  pp.   1213. 

(336) 


Prussian  Railway  Rate-Making  93 

considerations  are  not  so  controlling  as  in  the  United  States ;  but, 
on  the  other  hand,  much  has  already  been  accomplished  by  the 
Prussian  state  raflroads,  and  whatever  is  accomplished  is  done  in 
the  light  of  full  publicity  and  not  secretly  with  private  parties. 
Rebates  and  personal  discriminations  are  unknown  on  the  Prussian 
state  railways. 

Financial  and  Technical  Results. — Financially  the  Prussian 
state  railroads  have  been  highly  successful.  The  desire  of  Bis- 
marck ultimately  to  reduce  the  rates  to  a  basis  of  cost  has  been 
discarded  from  the  policy  of  the  administration.  Freight  rates  have 
declined,  but  with  the  effect  of  increasing  the  profits  to  the  state. 
In  1905  the  passenger  service  yielded  a  gross  income  of  446,335,000 
marks,  the  freight  service  of  1,073,600,000,  and  the  income  from 
miscellaneous  sources  was  98,182,000,  a  total  of  1,618,117,000 
marks.  In  the  same  year  the  total  operating  expenses  amounted  to 
983,439,300  marks.  There  was  consequently  a  surplus  of  634,677,- 
700  marks,  or  over  $151,000,000.*-  If  to  the  operating  expenditure 
charges  for  interest,  special  funds,  etc.,  are  added,  there  was  still  in 
1905  a  net  profit  to  the  state  of  over  $120,000,000.*^  In  1904  the 
net  profits  e(]ualed  7.17  per  cent  on  the  total  railway  capitalization 
of  8,824,957,896  marks.**  Not  only  has  the  railway  debt  been 
steadily  reduced  in  late  years,  but  large  sums  have  each  year  been 
turned  into  the  state  treasury  to  defray  general  state  expenses.  If 
all  the  railroad  profits  which  have  been  turned  into  the  state  treasury 
had  been  used  to  pay  the  railroad  debt,  every  cent  of  the  debt  would 
now  be  paid.*^  It  was  feared  at  first  that  the  nationalization  of  the 
railways  would  endanger  the  business  of  the  state,  but  instead  the 
railroads  have  become  a  money  producing  agency  based  upon  the 
policy  that  railway  rates  and  fares  are  more  readily  paid  than  an 
increased  rate  of  taxation. 

The  reduction  of  freight  rates  and  the  growth  of  profits  have 
not  been  at  the  expense  of  technical  improvements.  In  the  matter 
of  size  of  cars  and  trainloads,  introduction  of  steel  cars,  automatic 
couplings,  tunnels,  terminal  facilities,  and  in  many  other  technical 
matters,  the  railways  of  Prussia  are  inferior  to  those  of  America. 
At  the  same  time,  the  state  railroads  of  Prussia  are  making  greater 

"  Ergebnisse  dps  Betriebs,  etc.,  1906,  pp.  50-51. 

« B.   H.   Meyer,   .Tour.   Tol.   Econ.,  Feb.,   1006,   p.   97. 

*•  Ergebnisse  des  Betriebs,  etc.,   1904,   p.    11. 

«Prof.  B.  H.  Meyer  in  Jour.  Pol.  Econ..  I>1.  .   1006.  p.  90. 


94  The  Annals  of  the  American  Academy 

progress  than  other  railways  of  Europe — whether  private  or  state. 
In  1904,  128,747,348  marks  were  expended  on  the  increase  and 
maintenance  of  rolHng  stock,  177,771,095  on  construction  and  163,- 
603,919  on  general  equipment  and  engines.*"  Larger  engines  and 
cars  and  better  terminal  arrangements  are  being  introduced  side  by 
side  with  the  reduction  of  rates  and  increased  profits.  Better  use  is 
being  made  of  cars  by  means  of  telegraphic  reports  sent  from  each 
district  to  the  directorate  at  Madgeburg,  and  by  agreements  per- 
mitting the  use  of  foreign  cars.*'  Where  traffic  is  very  dense  special 
depots  for  particular  freight  are  provided,  instances  of  which  are 
the  cattle  depot  and  fuel  depot  at  Berlin,*®  the  block  signal  system 
is  almost  universal,  as  far  as  possible  dwellings  are  erected  by  the 
state  for  employees,  who  must  live  near  the  railways,  refrigerator 
cars  and  special  fast  trains  are  introduced  for  perishable  goods.*' 
and,  as  in  the  United  States,  second,  third,  fourth  and  even  fifth 
tracks  are  being  constructed  to  avoid  congestion  of  traffic.^"  As  a 
general  rule,  these  improvements  are  first  introduced  by  the  Prussian 
state  railway,  and  then  are  gradually  adopted  by  the  private  and 
other  state  railways  of  Germany. 

The  physical,  social,  political,  governmental  and  economic  con- 
ditions of  Prussia  diflfer  from  those  prevailing  in  the  United  States. 
Prussian  experience  does  not  demonstrate  the  feasibility  of  govern- 
ment rate-making  in  America,  nor  does  it  demonstrate  superiority 
over  the  American  system  of  rates  made  by  private  railroads  under 
partial  government  supervision ;  but,  as  applied  under  Prussian  con- 
ditions,'government  rate-making  has  been  industrially,  commer- 
cially, financially  and  technically  successful. 

**  Ergebnisse  des   Betriebs,  etc.,   p.   33. 

*<  Ibid.,  p.   62. 

**  British  Rept.   on  Prussian   Railways,  pp.   25-26. 

*»  Verwaltung  der   Ofifentlicben   Arbeiten   in    Preussen    (1901),   p.   61. 

^  Ihtd.,  p.  15.     Ergebnisse  des  Betriebs   (1904),  p.  10. 


(338) 


Class   2. 

Class  3. 

Class  4. 

4-5 

30 

2.0 

1.72 

IIS 

0.767 

Prussian  Railway  Rate-Making  95 

APPENDIX. 

A  New  Germ.\n  Passenger  Tariff.* 

The  negotiations  among  the  several  states  of  the  German  Empire  for  a 
uniform  passenger  tariff,  which  have  been  pending  some  two  years,  have 
resuhed  in  an  agreement,  and  the  reformed  tariff  will  probably  go  into  effect 
May  I,  1907.     The  basis  of  the  new  tariff  is  as  follows: 

Class  I. 

Pfennige,    per    kilometer 7.0 

Equals,  cents  per  mile   2.68 

The  chief  obstacle  to  a  uniform  tariff  was  the  objection  of  the  South 
German  states  to  the  introduction  of  the  fourth  class,  and  this  has  not  been 
wholly  overcome;  for  in  Bavaria  and  Baden  no  fourth  class  cars  are  con- 
templated; but  on  local  trains  only  the  fourth  class  rate  will  be  charged  for 
third  class  cars,  the  rate  being  known  as  3b. 

With  these  rates  there  will  be  no  reduction  for  round-trip  tickets,  and 
no  free  baggage.  The  above  rates  are  for  ordinary  passenger  trains.  For 
express  trains  there  will  be  an  addition,  but  not  as  heretofore,  an  addition 
of  so  much  per  kilometer,  but  a  fixed  sum  for  three  zones,  namely: 

Kilometers 

More 
I  to  75.  76  to  150.  than   150. 

Classes  i  and  2 .' 0.50  pf.  100  mk.  2  mk. 

Class   3 0.25    "  0.50  pf.  I 

That  is,  for  distances  less  than  47  miles,  the  ticket  will  cost  6  cents 
more  in  the  third  class  and  12  cents  more  in  the  higher  clas.ses;  47  to  93 
miles.  12  cents  third  and  24  cents  first  and  second;  all  greater  distances,  24 
cents  third  and  48  cents  in  higher  classes.  This,  it  will  be  seen,  is  a  sub- 
stantial addition  to  the  fare  for  short  distances;  thus.  New  York  to  Stamford 
second  class,  54  kilometers,  the  fare  would  be  2.33  marks  by  passenger  train 
and  2.83  by  express;  to  New  Rochelle,  half  as  far,  the  fare  is  1.16  marks  by 
passenger  train  and  1.66  by  express;  in  the  first  case  21  per  cent,  in  the 
other  41  per  cent  more  for  the  fast  train.  But  for  great  distances  the  charge 
for  speed  is  inconsiderable:  24  cents  to  Philadelphia  and  only  48  cents  for 
the  longest  distance  for  which  tickets  are  issued.  The  purpose  of  thif, 
doubtless,  is  to  keep  local  travel  off  from  long-distance  express  trains;  but 
it  would  seem  to  be  disadvantageous  for  the  longer  distance  suburban  trains, 
such  as  New  York-Morristown,  New  York-Tarrytown,  or  New  York-Stam- 
ford; where  a  whole  train  can  be  filled  at  either  terminus,  to  the  advantage 
both  of  carrier  and  passenger. 

What  we  would  call  coupon  tickets  over  two  or  more  different  lines  by 
the  new  tariff  will  cost  0.115  cent  more  per  mile  for  the  first  and  second 
class  and  0.077  cent  more  for  third  class  than  the  tickets  over  one  line;  but 
they  have  the  important  advantage  that  they  are  good  both   on  passenger 

'  Reprinted  by  permission,  from  the  Railroad  Gazette  of  February  15,  1907. 

(339) 


g6  The  Annals  of  the  American  Academy 

and  express  trains.  As  comparatively  few  journeys  as  long  as  300  miles  can 
be  made  without  such  tickets,  the  one  mark  and  two  mark  additions  for 
express  trains  for  all  distances  above  93  miles  have  very  much  fewer  appli- 
cations than  they  would  have  in  a  country  like  this.  Suburban  and  holiday 
tickets,  school  and  workmen's  tickets  are  excepted  from  the  uniform  tariff, 
but  most  other  commutations,  such  as  mileage  and  book  tickets,  are  pro- 
hibited. 

There  has  been  heretofore  on  some  (perhaps  all)  of  the  roads  affected  an 
allowance  of  25  kilograms  (55  lbs.)  free  baggage.  By  the  reformed  tariff  all 
baggage  taken  in  baggage  cars  will  be  charged  at  the  following  rates  for 
every   25   kilograms : 

Zone.  Marks.  Zone.  Marks. 

I   to     25   km 0.20  351   to  400  km     2.00 

26    "       50      "       0.25  401     "    450      "       2.25 

SI    "    100    "      0.50  451    "500    "      2.50 

loi    "   150    "     0.75  501    "  600    "     3.00 

151     "     200      "        I.OO  601     "     700      "        3.50 

201     "     250      "        1.25  701     "     800      "        4.00 

251    "   300    "      1.50  More  than  800  km.   ..     5.00 

301    "350    "      1.75 

That  is,  for  less  than  16  miles,  4.8  cents  for  55  lbs.  or  less ;  anything  more 
than  55  lbs.  up  to  1 10  doubles  the  charge;  16  to  31  miles,  6  cents;  then  an 
addition  of  4.8  cents  for  every  31  miles  up  to  310  miles;  12  cents  for  every 
62  miles  up  to  500  miles,  and  for  all  distances  greater  than  500  miles  $1.19 
per  55  lbs.  This  makes  New  York  to  Philadelphia  18  cents  for  55  lbs.,  36 
cents  for  56  to  no  lbs.,  and  54  cents  for  the  150  lbs.  free  baggage  allowed 
on  American  railroads.  New  York  to  Washington  or  Boston  our  allowance 
of  free  baggage  would  cost  $1.43;  Chicago  to  Buffalo,  $3.57;  but  no  more 
from  Chicago  to  New  York.  These  rates  are  likely  to  make  the  passenger 
think  twice  before  he  packs  his  trunk;  which  is  doubtless  desirable.  In  one 
country  where  the  matter  was  investigated,  it  was  found  that  not  one  pas- 
senger in  seven  had  any  baggage  for  the  baggage  car,  and  it  is  questioned 
whether  the  six  should  be  taxed  for  the  benefit  of  the  one  who  does  have 
baggage;  that  is,  whether  they  should  pay  as  much  as  though  they  had  bag- 
gage. 

In  comparing  with  conditions  here,  it  should  be  remembered  that  the 
free  baggage  allowance  in  Germany  heretofore  has  been  but  55  lbs.  (where 
there  was  any),  and  that  the  German  cars  enable  the  passenger  to  carry  into 
the  car  with  him  probably  more  than  three  times  the  amount  of  baggage  that 
he  could  dispose  of  conveniently  in  one  of  our  cars.  At  the  above  rates 
baggage  may  be  taken  up  to  the  weight  of  440  lbs.  on  one  ticket.  For 
weights  in  excess  of  this  the  rates  are  doubled.  Applying  these  rates  to  the 
journey  from  New  York  to  Chicago,  with  the  allowance  of  150  lbs.  of  baggage 
(165  lbs.  would  cost  no  more),  we  have: 


Pnissiaji  Railzvay  Ralc-Makiiig  97 

Class  3.  Class   2.  Class   i. 

Fare     $10.71  $16.07  $^4-99 

Speed    ^ 24                  .48  .48 

Baggage    3  57                3-57  3  57 

Total    $14-52  $20.12  $29.04 

The  German  second  class  cars  are  as  good  as  our  first  class  on  most 
long  routes.  Tlie  lirst  class  can  hardly  be  said  to  be  better,  but  there 
is  usually  plenty  of  room  in  them.  If  we  take  a  passenger  without  baggage, 
the  ciiarge  is  reduced  to  $10.95,  $16.55  and  $25.47  respectively. 

Journeys  of  that  length,  however,  are  extremely  rare  in  Germany;  and 
even  those  of  half  that  length  are  not  conmion.  From  New  York  to 
lUiffalo  the  German  charges  would  be: 

Class  3.  Class  2.  Class  i. 

Fare  $505  $7-58  $ii.79 

Speed    24  .48  .48 

Baggage     2.85  2.85  2.85 

Total    $8.14  $10.91  $15.12 

This  is  an  unfavorable  specimen  on  account  of  the  baggage;  if  the  dis- 
tance were  only  live  miles  less  the  charges  would  be  36  cents  less.  New 
York  to  Boston  or  Washington  (say  370  kilometers)  we  have: 

Class  3.  Class  2.  Class  i. 

Fare  $264  $3.96  $6.t6 

Fxoress    24  .48  .48 

$2.88  $4.44  $6.64 

Baggage   143  i-43  i-43 

Total   $4-31  $587  $8.07 

No  figures  are  given  for  fourth  class  fares,  because  fourth  class  cars  are 
not  run  on  express,  nor  for  long  distances.  In  considering  these  comparisons 
it  should  be  remembered  that  the  German  fares  are  to  be  good  on  all  state 
railroads  in  the  German  Empire,  and  our  figures  are  chiefly  for  the  routes 
of  heaviest  travel  and  lowest  fares  in  this  country.  Comparisons  with  routes 
in  the  far  West  and  the  South  would  be  much  more  uT'favorable  for  the 
American  lines.  There  are  nowhere  in  Germany  districts  where  population  is 
so  thin  and  travel  so  light  as  in  many  parts  of  this  country.  Further,  it 
should  be  remembered  that  an  overwhelmingly  large  part  of  the  German 
travel  is  third  class.  Again,  there  is  now  a  tax  on  tickets,  which  adds  to 
the  traveler's  expense,  though  not  to  the  railroad's  income. 


AN   ARGUMENT  AGAINST   GOVERNMENT   RAILROADS 
IN  THE  UNITED  STATES 


By  William  Allmand  Robertson,  Esq., 
New  York  City,  of  the  New  York  and  Boston  Bars. 


The  people  of  the  United  States  are  enjoying  unprecedented 
prosperity.  The  catises  of  the  present  rapid  development  of  the 
cotintry  are  ntnnerous,  but  probably  the  highly  developed  railway 
transportation  system  has  been  more  influential  than  any  other  force. 
In  1870  the  railroad  mileage  of  the  United  States  was  only  53,000; 
to-day  it  is  220,000,  an  increase  of  over  300  per  cent  in  a  generation. 
Although  no  one  questions  the  financial  success  of  private  manage- 
ment of  railroads,  there  are  many  persons  who  believe  that  the  rail- 
roads in  the  United  States  should,  in  the  future,  be  owned  and 
operated  by  the  government.  Those  who  are  of  this  opinion  argue 
that  the  railroads  as  now  managed  are  a  private  monopoly,  the 
effects  of  which  are  detrimental  to  the  public,  and  that  the  only 
method  of  escaping  the  results  of  private  monopoly  is  to  substitute 
therefor  the  greatest  government  monopoly  the  world  has  ever 
known. 

Such  a  program  is  so  revolutionary  that  it  can  be  justified  only 
by  an  absolute  demonstration  of  the  failure  of  the  present  method 
of  private  ownership  and  management  of  railroads  to  meet  equitably 
and  adequately  the  transportation  needs  of  the  people  of  the  United 
States.  Furthermore,  the  advocates  of  the  change  must  be  able  to 
prove  that  government  operation  can  be  made  a  success. 

If  a  radical  change  is  to  be  made  in  present  railway  operation, 
it  must  certainly  be  made  only  for  good  reasons.  Are  there  adequate 
reasons?  If  so,  one  of  the  reasons  would  naturally  be  high  rates. 
As  far  as  rates  are  concerned,  the  consensus  of  intelligent  opinion 
is  that  rates  are  generally  lower  in  the  United  States  than  in  any 
other  country,  and  that  until  very  recently,  at  least,  they  have  tended 
steadily  to  decline.  The  complaint  in  regard  to  rates  is  not  that 
they  are  too  high  in  general,  but  that  they  are  unduly  high  in  certain 
localities  and  that  they  are  not  uniform  to  all  shippers,  i.  e.,  that  they 
ire  to  some  extent  extortionate  and  to  a  large  extent  discriminatory. 

(342) 


'Argument  Against  Government  Railroads  99 

How  far,  it  may  be  asked,  will  government  ownership  simplify 
the  problem  of  rate-making?  It  may,  of  course,  be  assumed  that  the 
government  will  be  as  much  concerned  as  would  any  private  corpo- 
ration in  establishing  freight  rates  that  will  be  reasonable  and  attrac- 
tive to  shippers  generally,  and  at  the  same  time  remunerative  and 
yield  fair  profits  upon  the  capital  invested.  To  one  who  has  never 
ct)nsidered  the  subject,  the  intricacies  of  rate-making  will  prove  a 
painful  and  vexatious  surprise.  There  are  so  many  different  and 
discordant  elements  entering  into  the  conditions  that  an  exact  solu- 
tion is  impossible.  It  is  not  our  purpose  to  explain  in  detail  what 
the  rules  of  rate-making  are  or  should  be,  but  rather  to  emphasize 
the  inherent  and  accumulated  difficulties  involved.  As  observed  by 
the  Industrial  Commission,  in  its  report  to  Congress,^  "the  condi- 
tions are  highly  complex,  and  no  simple  and  general  rules  can  be 
made  to  govern  in  all  instances.  The  very  complexity  of  the  prob- 
lem emphasizes  the  necessity  for  intelligent  direction." 

The  problem  which  a  freight  agent  or  traffic  manager  has  to 
meet  is  so  different  from  that  which  the  public  supposes,  that  it  is 
hard  to  explain  it  in  a  few  words.  The  picture  that  seems  vividly 
portrayed  upon  the  minds  of  most  men  is  that  of  the  general  freight 
agent  arbitrarily  deciding  upon  whatever  rate  he  deems  sufficient  to 
pay  for  the  "cost  of  service"  (the  cost  of  actually  moving  a  ton  of 
freight  a  certain  distance),  together  with  enough  to  cover  the  com- 
pany's taxes  and  the  interest  on  the  bonded  indebtedness  (which  is 
gcnerallv  assumed  to  be  needlessly  and  culpably  large),  and  to  pay 
dividends  on  an  artificial  and  imaginary  capitalization.  In  reality, 
this  sort  of  reasoning  is  putting  the  cart  before  the  horse.  The 
rate  is  really  dependent  upon  conditions  in  the  world  of  trade,  the 
character  of  the  commodity  to  be  moved,  the  extent  of  comi)etition 
from  other  carriers,  either  rail  or  water,  and  the  possibilities  of  the 
development  of  a  line  of  business  or  a  section  of  country. 

When  the  rate  has  once  been  made  and  the  revenue  earned,  the 
next  problem  is  the  prosaic  one — very  familiar  to  every  housekeeper 
— of  adjusting  expenses  to  income.  The  name  of  these  expenses  is 
legion :  The  wages  of  labor  and  the  cost  of  fuel  and  innumerable 
suj)plies  are  elements  in  the  cost  of  conducting  transportation.  The 
maintenance  of  the  roadbed  and  stations,  and  of  the  terminal  facili- 
ties in  great  cities — these  are  elements  in  the  maintenance  of  the 

^Report   of    Industrial    rommission     ^'nl.    XTX,    p.    359. 

(343) 


100  The  Annals  of  the  American  Academy 

physical  property  of  the  road.  New  engines  and  cars  and  the  repair 
of  old  ones  make  up  the  account  called  maintenance  of  equipment. 
The  taxes  due  the  state,  and  the  interest  on  the  bonded  debt  of  the 
company,  make  up  the  company's  fixed  charges ;  charges  which 
must  be  met  if  the  corporation  is  to  remain  solvent."  Then  there  is 
still  the  need  of  setting  aside  funds  against  the  depreciation  of  the 
property,  the  maintenance  of  a  surplus  against  hard  times  and 
unlooked  for  expenses  and  emergencies ;  and,  lastly,  the  raising  of  a 
net  revenue  for  dividends,  so  that  those  who  own  the  road  may 
receive  some  return  on  their  investment.  All  these  varied  expenses 
enter  into  the  financial  side  of  railroad  management. 

Very  often  the  salvation  of  a  road  is  bound  up  with  a  reduction 
of  its  cost  of  operations  rather  than  in  the  raising  of  its  freight  rates 
— which  latter  performance  is  likely  enough  to  be  a  sheer  impos- 
sibility, and  unwise,  even  if  possible.  The  Lehigh  Valley  and  the 
Southern  Pacific  roads  are  recent  illustrations  of  this  fact.  Both 
of  these  companies  found  it  necessary  some  years  ago  practically  to 
reconstruct  their  properties,  if  they  were  to  remain  in  the  business 
of  transportation  and  earn  money.  After  periods  of  entire  cessation 
erf  dividend  paying,  and  by  means  of  prodigal  expenditures  on 
improvements,  they  have  once  more  taken  their  places  in  the  list 
of  properties  for  investment.  Very  often  these  periods  of  recon- 
struction press  with  crushing  force  on  the  owners  of  the  road,  the 
stockholders,  of  whom  we  hear  so  little  in  most  of  the  discussions 
on  railroad  reform.  Sometimes  nothing  else  than  a  heavy  loan  will 
give  the  company  the  ready  cash  to  meet  importunate  but  just 
demands  of  shippers  for  increased  facilities  and  speedier  transit  of 
freight.  Sometimes  there  must  be  the  heroic  remedy  of  a  receiver- 
ship, a  scaling  down  of  indebtedness,  and  a  general  reorganization. 

Tt  is  idle  to  imagine  that  officials  or  clerks  in  a  government 
bureau  will  be  able  to  handle  such  questions  as  we  have  mentioned 
better  than  the  trained,  experienced  and  well-paid  officers  of  a  rail- 
road. Nay,  it  is  difficult  to  think  of  their  being  intelligently,  speedily 
and  satisfactorily  disposed  of  at  all  by  any  government  denartment. 
Whoever  has  had  dealings  with  a  great  government  office  knows 
the  truth  of  these  words.     For  reasons  that  are  pretty  well  under- 

*TIie  .Tufhor,  In  using  the  term  "fixed  ehnrsres,"  is  aware  that  opinions  differ 
as  to  preoisely  wliat  sliould  be  included  in  that  term.  So  also  as  to  the  other 
Items  of  expense  set  out. 

(344) 


Argument  Against  Covcntincnt  Raihoads  loi 

stood  by  the  .Vnierican  people,  the  government  possesses  an  un- 
rivaled facility  for  drawing  to  itself  a  vast  proportion  of  the  medi- 
ocre, the  lazy  and  the  unambitious.  While  every  government  office 
contains  a  certain  modicum  of  faithful  and  efficient  public  servants, 
it  is  usually  the  irony  of  fate  that  they  are  in  a  permanent  minority, 
are  persistently  underpaid,  and,  if  they  have  not  lost  heart,  are 
seeking  an  early  opportunity  to  retire  from  public  service  altogether. 
In  short,  there  is  a  steady  tendency  for  the  competent  to  resign  and 
the  incompetent  to  remain,  coupled  with  an  appalling  official  inertia 
that  tends  to  stiile  the  slightest  exhibition  of  individual  enterprise 
or  initiative.  This  fatal  tendency  toward  petrified  conservatism  is 
one  of  the  worst  features  about  the  conduct  of  public  business.  Nor 
is  there  much  hope  of  any  marked  improvement  through  civil  service 
reform.  Excellent  as  that  is,  it  is  at  best  a  cuml)ersome  piece  of 
machinery,  inefifective  outside  of  certain  limits.  A  vast  improve- 
ment on  the  spoils  system,  it  has  completely  failed  to  raise  the  aver- 
age government  office  to  an\tliing  like  the  level  of  effectiveness 
easily  secured  in  an\-  good  private  business  establishment.  Enthu- 
siastic reformers  cheat  themselves  into  the  belief  that  the  weight  of 
an  enlightened  public  sentiment — the  traveling  and  shipping  public 
being  brought  in  daily  contact  with  the  railroad — would  compel  an 
improvement  in  the  conditions  we  have  pictured.  Has  the  weight 
of  public  sentiment  ever  permanently  cured  the  lesser  diseases  of 
the  body  politic?  Has  it  brought  effectiveness,  economy  and  high 
character  into  the  police,  street  and  water  departments  of  our  great 
cities'*  How  often  is  a  state  capitol  built  within  the  appropriation? 
Have  the  taxpayers'  of  Xew  York  ever  checked  extravagance  and 
corruption  on  the  Erie  Canal,  or  taken  that  formerly  useful  artery 
of  travel  out  of  "politics  ?" 

Even  assuming  that  the  tone  of  the  public  service  can  be  made 
equal  to  that  of  an  ordinary  business  house,  the  question  still  remains 
why  government  officials  will  be  able  to  solve  transportation  prob- 
lems better  than  private  individuals.  There  is  no  magic  in  wearing 
the  livery  of  government,  and  no  private  fund  of  knowledge  is  at 
the  disposal  of  its  officials.  Thev  have  no  peculiar  facilities  for 
reaching  correct  conclusions.  The  problems  will  not  be  a  whit 
simplified  bv  placing  the  carriers  in  the  hands  of  a  government 
bureau.  The  difficulties  that  now  hang  about  the  subject  of  freight 
rates  are  inherent  and  rest  in  the  ^'erv  nature  of  the  service  to  be 

(345) 


102  1  he  .^iiuials  of  the  Aincncaii  Academy 

performed.  Unless  freight  rates  are  to  be  prescribed  on  a  blind, 
arbitrary  and  nnreasonable  basis,  without  regard  to  the  real  and 
ever-changing  conditions  of  the  business  world,  the  same  difficulties 
that  now  puzzle  traffic  managers,  vex  merchants,  and  assail  railroad 
commissions  and  courts,  will  be  present  as  surely  and  as  potently 
under  public  service  as  under  private  ownership. 

But  to  the  mercantile  community  the  transfer  of  ownership 
would  be  a  change  fraught  with. unending  and  incalculable  mischief. 
If  there  is  one  desideratum  for  the  shipping  community  and  the 
world  of  trade,  it  is  a  system  of  freight  rates  that  shall  be  flexible 
and  adaptable  to  the  thousand  and  one  varying  conditions  of  busi- 
ness. We  have  lately  heard  so  much  about  "stability  of  rates"  and 
"maintenance  of  the  published  tariffs" — necessary  and  proper  as 
these  are — that  we  have  almost  forgotten  that  flexibility  is  as  essen- 
tial as  uniformity.  It  is  the  glory  as  well  as  the  weakness  of  our 
transportation  system  that  it  is  peculiarly  American,  truly  a  plant 
of  native  growth,  and  that  it  has,  on  the  whole,  adapted  itself 
marvelously  well  to  the  development  and  unprecedented  expansion 
of  our  country.  This  has  resulted  from  a  remarkable  power  of 
adjustment  to  local  needs  in  a  land  where  growth  and  change  have 
been  abnormally  rapid.  New  communities  have  received  transpor- 
tation facilities  at  times  when  there  has  not  been  enough  business 
to  pay  the  bare  cost  of  the  salaries  of  engineers  and  conductors. 
Industrial  plants,  not  only  those  of  overgrown  corporations,  but 
new  ones  in  sparsely  settled  regions,  have  enjoyed  freight  rates 
which  have  enabled  them  to  land  their  goods  in  the  first  markets  of 
the  world.  Witness  the  action  of  the  Great  Northern  road,  ever 
since  its  inception,  towards  the  farmers  and  lumbermen  of  the  north- 
west. Note  the  policy  of  the  Southern  Railway  tow^ard  the  iron 
works  of  Alabama  and  the  cotton  mills  of  the  Carolinas  and  Georgia. 

If  in  place  of  a  management  of  this  kind,  at  once  both  sympa- 
thetic and  self-interested,  the  merchants  had  been  obliged  to  meet 
the  stolidity  of  a  government  bureau,  its  circuity  of  operation,  the 
desire  to  postpone  action  till  "after  election,"  how  different  must 
have  been  their  experience.  Or,  if  they  had  been  forced  to  deal 
with  Congress,  they  might  have  seen  the  measure  succeed  in  one 
house  or  before  one  committee,  onlv  to  be  indefinitely  delayed  in 
the  other  house  or  in  committee  of  the  whole,  or  plaved  off  against 
other  interests  in  far-away  sections  of  the  country  whose  represen- 

(346) 


Arguineiii  .Igaiiist  Got'cniiiicnt  Railroads  103 

tativcs  (leniandecl  some  quid  pro  quo  for  their  support.  They  would 
then  have  reahzed  the  profound  truth  contained  in  the  observation 
of  a  great  modern  historian,  that  the  people's  representatives  and 
lawmakers  have  rarely  accorded  any  great  public  privilege  except 
under  strong  pressure. 

Under  present  conditions,  the  aggrieved  merchant  may  always 
appeal  from  the  railroad  company  itself  to  government  aid  in  some 
form.  State  and  federal  commissions  stand  ready  to  adjust  rates — 
sometimes,  indeed,  with  "a  strong  hand  and  a  multitude  of  people" 
— and  behind  the  commissioners  are  the  courts.  Everybody  is  ready 
and  willing  to  move  against  a  railroad  corporation.  But  let  the 
government  once  become  the  supreme  monopolistic  owner  of  the 
mightiest  railroad  in  the  world,  and  how  feeble  and  helpless  will  be 
the  shipper  who  pleads  before  some  government  department  for 
relief  in  freight  rates,  having  nothing  but  the  merits  of  his  case  to 
invoke  in  his  behalf. 

Thus  far  I  have  been  insistent  only  upon  the  main  contention 
that,  in  the  very  nature  of  the  case,  there  is  nothing  about  govern- 
ment control  or  government  officials  that  can  promise  any  easy  or 
satisfactory  solution  of  the  problems  of  transportation,  and  much 
to  suggest  the  very  reverse.  But  there  are  many  other  weighty 
considerations  against  government  ownership  and  in  favor  of  gov- 
ernment supervision.  One  of  these  is  the  facility  for  offering  secret 
rebates  which  must  occur  under  any  plan  of  government-managed 
railroads.  From  the  earliest  times,  government  officers  have  been 
peculiarly  open  to  fraud  and  malfeasance,  and  especially  so  in  large 
and  highly  centralized  governments.  Witness  Russia  and  China 
across  the  water.  Glance  at  our  own  history.  During  the  years 
after  the  civil  war  the  government  at  Washington  seemed  fairly 
honeycombed  with  corruption.  The  Credit  Mobilier  and  the  whisky 
frauds  flourished,  and  Congress  actually  found  it  necessary  to 
impeach  a  cabinet  officer  for  misconduct.  The  scandals  in  our 
municipal  governments  are  too  well  known  to  need  specific  mention ; 
and  in  very  recent  years  we  have  seen  the  discovery  of  gross  frauds 
in  our  postoffices,  and  a  shameful  waste  of  millions  of  dollars  voted 
by  the  people  of  New  York  for  improving  the  Erie  Canal.  There 
is  nothing  about  government  management  that  gives  the  smallest 
hope  that  the  secret  rebate  would  not  be  freely  used.  Indeed,  the 
ease  with  which   favors  of  this  kind  could  be  granted  or  denied 

(347) 


104  ^  /^t-'  ^iiiiials  uf  the  ^Imcrican  Acaaemy 

would  place  in  the  hands  of  the  dominant  party  such  a  power  as  is 
fearful  to  contemplate.  And  what  reformation  is  so  difficult  of 
accomplishment  as  the  cleansing  of  a  great  bureau  or  department? 

There  is  another  excellence  which  we  Americans  have  thus  far 
enjoyed  with  which  we  must  part  forever  if  the  government  is  to 
run  our  railroads.  This  is  the  possibility  of  reorganizing  a  bankrupt 
and  unprofitable  line  by  scaling  down  its  debts  and  charges.  This 
process,  drastic  and  severe  as  it  may  be  upon  a  few  individuals,  has, 
nevertheless,  proved  of  inestimable  benefit  to  the  country  at  large, 
and  the  very  salvation  of  many  of  our  now  flourishing  companies. 
It  has  enabled  all  parties  to  wipe  off  old  scores,  turn  over  a  new  leaf 
and  start  afresh ;  and  this  reduction  of  charges  has  made  possible 
important  improvements.  But  in  Germany,  where  government 
ownership  has  long  prevailed,  much  embarrassment  has  been  felt 
from  the  inability  of  government  to  carry  out  such  a  process  of 
reconstruction.  The  debts  of  the  road  once  assumed  by  govern- 
ment remained  as  a  permanent  incumbrance,  and  have  never  been 
discharged  if  the  earnings  have  been  insufficient  to  pay  the  interest. 
This  is  but  another  illustration  of  the  necessary  rigidity  and  want 
of  elasticity  of  any  system  of  management  proceeding  by  consti- 
tution and  statute,  it  is  bound  to  observe  legal  rather  than  com- 
mercial requirements,  and  is  dependent  on  the  action  of  hundreds 
of  lawmakers  gathered  from  the  four  corners  of  the  land. 

I  am  aware  that  some  enthusiastic  advocate  of  government  rail- 
roads will  insist  that  I  am  looking  at  new  conditions  through  old 
spectacles.  When  the  government  takes  hold  of  the  transportation 
system  of  the  country,  there  will  be  no  difficulties  about  freight  rates, 
or  bonded  indebtedness,  or  competing  lines,  or  differentials.  All 
these  troubles  will  vanish  like  the  creatures  of  a  bad  dream.  The 
government  being  the  sole  owner  of  all  the  lines,  there  will,  of 
course,  be  no  competition.  The  government  officials,  having  no 
private  axe  to  grind,  will  act  in  an  enlightened  and  disinterested 
manner.  The  government  having  unlimited  wealth  and  the  ability  to 
raise  any  sum  it  needs  by  taxation,  there  will  be  no  trouble  about 
remunerative  freight  rates,  or  capitalization,  or  receiverships,  or 
loans.  All  these  matters  will  settle  themselves,  or  can  be  left  to  the 
"wisdom  of  Congress."  The  difficulty  about  such  reasoning  is  that 
it  draws  heavily  on  the  credulity  of  the  American  people.  For,  if 
the  government  is  to  run  the  railroads,  the  thinking  part  of  the 

(348) 


Argument  Against  Government  Railroads  105 

community  will  demand  that  they  be  run  at  a  profit,  and  not  at  a 
loss,  and  that  the  freight  rates  shall  be  lower  than — not  merely  as 
low  as — at  present.  If  this  mighty  change  is  to  be  made,  some  great, 
striking  and  substantial  gain  must  be  the  result,  or  the  plan  is  not 
worth  the  carrying  out. 

While  the  American  people  have  great  faith  in  representative 
government  w'ithin  lines  that  have  been  tried,  nevertheless  they  have 
seen  the  legislative  branches  of  their  government,  state  and  federal, 
severely  strained  of  late  to  transact  only  such  necessary  and  usual 
business  as  has  fallen  to  their  lot.  In  the  space  of  seventeen  years, 
they  have  lived  through  the  enactment  of  three  tariff  acts  imposing 
duties  on  imports.  The  passage  of  these  measures  has  aflforded  them 
an  opportunity  of  observing  how  Congress  deals  with  a  complicated 
measure  afifecting  many  rival  sections  of  country  and  hundreds  of 
hostile  interests.  They  have  witnessed  the  spectacle  of  a  lower 
house — the  "popular"  branch  of  the  national  legislature — helpless  in 
the  hands  of  a  speaker  and  a  committee  on  rules  clothed  temporarily 
with  almost  despotic  powers.  They  have  seen  the  most  deliberate 
and  intelligent  legislation  emanating  from  a  senate  of  relatively 
small  membership ;  but  they  have  also  seen  the  senatorial  committees 
themselves  driven  almost  to  desperation  by  the  terrific  pressure 
imposed  upon  them  by  irreconcilably  conflicting  interests  working 
for  different  ends  by  means  of  powerful  and  effective  lobbies.  The 
result  has  invariably  been  a  compromise — which  every  lawmaker 
has  realized  was  imperfect,  but  which  he  would  dread  with  almost 
pathetic  timidity  to  see  reopened  for  discussion  and  amendment. 

The  framing  of  a  tariff  bill,  vast  and  vexatious  as  it  is,  is 
child's  play  beside  the  task  of  arranging  a  schedule  of  freight 
charges  for  the  multitudinous  cities  and  towns  of  a  country  extend- 
ing over  3,600,000  square  miles,  and  having  commercial  relations 
with  every  nation  on  the  face  of  the  globe.  In  the  presence  of  such 
a  duty,  the  most  learned  legislature  that  ever  convened  might  well 
shudder  in  abject  helplessness.  From  time  to  time,  as  certain  indi- 
vidual states  of  our  union  have  created  state  railroad  commissions, 
they  have  often  provided  that  the  first  duty  of  the  new  commission 
should  be  the  preparation  of  a  complete  schedule  of  freight  rates 
for  all  purely  intra-state  commerce  (i.  e.,  commerce  originating  and 
terminating  within  the  limits  of  the  state).  Insignificant  as  this 
labor  is  by  the  side  of  the  making  of  a  schedule  of  rates  for  the 

Y.?/ioY 


io6  The  Annals  of  the  American  Academy 

nation,  it  is  nevertheless  a  herculean  task,  and  one  that  has  proved 
beyond  the  powers  of  any  set  of  commissioners  that  was  ever  got 
together  to  perform  intelligently. 

Yet,  if  government  ownership  is  to  prevail,  the  determination 
of  millions  of  rates  for  the  greatest  mercantile  nation  of  the  globe 
must  devolve  upon  some  one  body  of  persons,  be  their  number  or 
official  designation  what  it  may.  Involuntarily  we  recoil  at  the  bare 
thought  of  such  unlimited  powers  inhering  in  any  single  body  of 
officials  under  a  government  that  calls  itself  free. 

But  the  limits  of  this  article  forbid  a  consideration  of  the  sub- 
ject in  all  its  details.  I  have  tried  to  indicate  some  of  the  enormous 
difficulties  involved  in  any  system  of  government  control  and  owner- 
ship of  the  machinery  of  transportation.  But  I  have  only  touched 
upon  them,  and  some  I  have  not  even  mentioned,  as,  for  example, 
the  immense  national  debt  that  must  be  created  in  the  attempt  to 
purchase  billions  of  dollars  worth  of  railroad  property,  the  vast 
issue  of  bonds  thereby  made  necessary,  the  bitter  opposition  to  even 
moderate  bond  issues  that  has  been  manifested  by  a  great  portion 
of  our  people,  the  jealousy  of  organized  labor  toward  so  vast  and 
irresponsible  an  employer  as  the  government,  the  entrance  of  the 
railroad  workingman's  vote  into  politics  as  the  vote  of  a  distinct 
faction  of  officeholders,  the  vice  of  a  quadrennial  change  of  manage- 
ment and  administration  at  the  national  capital,  and  last,  but  by  no 
means  least,  the  probable  change  in  the  temper  and  tone  of  the 
federal  government  toward  both  the  states  and  the  people  when 
made  the  repository  of  such  great  authority  and  power.^ 

The  true  line  of  progress  is  that  which  has  grown  up  naturally 
in  the  past  generation,  since  1870,  and  along  which  we  have  thus 
far  traveled  safely,  if  not  brilliantly.  It  is  the  policy  to  which 
President  Roosevelt  has  pledged  himself,  which  Congress  has  em- 
bodied in  a  statute,  and  which  more  than  thirty  states  of  our  union 
have  actually  tried  by  means  of  railroad  commissions.  It  is  a  policy 
of  regulation  and  supervision  to  be  sharply  distinguished  from  that 
of  ownership,  just  as  we  have  long  had  a  government  supervision, 
both  state  and  federal,  over  banks,  without  participation  on  the 
part  of  the  government  in  the  actual  business  of  banking.     It  has 

«No  attempt  hns  been  made  in  this  article  to  enter  into  the  constitntional 
question  of  the  power  of  the  federal  government  to  acquire  railroad  property  and 
engage   in   the  business  of  transportation. 

(350) 


Argument  Against  Covcninioit  Railroads  107 

not,  of  course,  secured  perfect  results,  nor  given  universal  satisfac- 
tion. Very  few  institutions  in  this  world  have,  not  even  trial  by 
jury,  which  is  probably  enshrined  as  strongly  as  any  purely  political 
institution  can  be  in  the  hearts  of  the  Anglo-Saxon  race.  In  our 
new  rate  law,  we  have  gone  to  the  very  verge  of  safety  in  the  experi- 
ment of  government  regulation ;  and  common  prudence  demands 
that  we  give  the  new  machinery  a  chance  to  show  the  kind  of  work 
it  can  do  before  we  attempt  further  alterations.  Perhaps  the  most 
serious  charge  against  government  supervision  of  railroads  thus 
far  is  that  its  machinery  is  cumbersome  and  its  operations  slow.  But 
it  has  combined  the  inestimable  advantages  of  individual  freedom 
and  enterprise,  coupled  with  responsibility  and  amenability  to  law. 
Whoever  imagines  that  any  system  of  governmental  operation  will 
be  free  from  the  defects  ai  cumbersomeness  and  tardiness  must  be 
singularly  guileless  and  unacquainted  with  the  transaction  of  gov- 
ernment business. 

Should  the  time  ever  arrive  when  the  American  people  will  be 
willing  to  deprive  themselves  of  such  an  immense  field  qf  individual 
effort  as  is  now  afforded  by  the  business  of  transportation,  it  will 
indicate  that  they  have  materially  lessened  their  faith  in  man,  and 
have  forgotten  the  truth  embodied  in  the  observation  of  Chancellor 
Zabriskie,  of  New  Jersey,  that  "The  security  and  continuance  of  1 
free  and  just  government  is  more  important  than  its  extension  or 
its  power." 


COMMUNICATION 


SHOULD    PUBLIC   FRANCHISES   BE   TREATED   AS   CORPORATE 

PROPERTY? 

By  Arthur  W.   Spencer^  Brookline,  Mass. 

Though  widely  accepted,  the  familiar  theory  that  a  public  franchise 
granted  to  a  corporation  has  the  character  of  private  property  is  open  to 
serious  objections.  Franchises  are  taxed  as  private  property  where  public 
service  corporations  are  subjected  to  state  control  of  even  the  simplest 
form.  At  the  same  time,  the  revenue  which  is  thus  secured,  being  offset 
by  certain  corporate  burdens  thrown  upon  the  public,  is  less  advantageous 
than  might  at  first  sight  appear. 

A  special  franchise  is  of  its  nature  a  grant  of  a  public  right  to  a 
private  individual  or  corporation.  Commonly  it  is  a  right  to  the  use 
of  streets,  highways,  and  public  places  for  the  purposes  of  lighting, 
transportation,  water  supplj',  and  other  public  utilities.  It  usually  happens 
that  the  right  granted  is  practically,  if  not  theoretically,  exclusive — that  is, 
the  corporation  to  which  it  is  given  will  not  be  disturbed  in  the  exercise 
of  the  privilege  by  a  competitor.  A  special  franchise  is  thus  to  a  certain 
extent  a  license  to  engage  in  some  form  of  monopoly,  and  it  commonly 
implies  an  unusually  favorable  opportunity  for  commercial  gain.  The 
value  of  this  commercial  privilege  may  be  readily  expressed  in  figures,  by  a 
computation  showing  the  amount  of  capital  which  would  be  necessary  in 
ordinary  safe  investments  to  produce  the  same  income.  Of  course  it 
is  only  proper  that  if  such  a  right  is  to  be  conferred  upon  any  private 
corporation  the  public  should  be  liberally  compensated  therefor,  by  taxation 
or  otherwise. 

It  is  easily  to  be  perceived,  however,  that  the  commercial  value  of  the 
franchise  is  derived  mainly  from  the  principle  of  monopoly,  for  without 
monopoly  the  mere  exercise  of  the  privilege  to  use  the  streets  for  a  defi- 
nite purpose  would  be  subject  to  the  risks  and  uncertainties  of  ordinary 
competitive  trade,  and  those  engaged  in  it  would  in  many  cases  derive  no 
profit  from  the  franchise  at  all,  over  and  above  the  profit  on  the  money 
actually  invested.  The  award  of  franchises  under  a  competitive  policy 
is,  of  course,  open  to  grave  objections.  It  is  here  referred  to  merely  for  an 
illustration.  Let  us  suppose,  for  example,  that  a  city  were  to  bestow  the  right 
to  use  its  streets  upon  a  number  of  street  railway  companies  operating  in  close 
competition  within  a  restricted  territory.  It  is  easy  to  see  that  if  by  care- 
ful management  each  of  these  companies  was  able  to  pay  fair  dividends  on  the 
capital  actually  invested  in  tangible  property,  it  would  be  doing  exceedingly 
well.  There  could  be  scarcely  any  opportunity,  under  close  competition, 
for  any  profits  in  excess  of  a  reasonable  return  on  the  actual  investment. 
The  franchises  granted  these  companies,  therefore,  assuming  that  the  city 

(352) 


Cowiuuiiication  109 

has  not  made  them  pay  for  them,  represent  no  commercial  privilege  which 
has  a  money  value;  they  are  public  rights  pure  and  simple,  juridical  rather 
than  economic  in  their  character,  and  though  they  have  been  assigned  to 
private  parties  they  still  retain  more  of  the  nature  of  public  privilege  than 
of  private  property.  The  commercial  value  cannot  come  in  until  the  grant- 
ing of  franchises  is  attended  with  concession  of  special  opportunities  for 
gain.  The  grant  of  a  right  of  monopoly  has  a  pecuniary  value  which  is 
by  no  means  commensurate  with  the  value  of  the  intangible  public  right. 
The  latter,  in  fact,  is  immeasurable  as  regards  value,  and  is  in  itself  devoid 
of   a   commercial   aspect. 

It  is  not  solely  from  the  monopoly,  however,  that  the  money  value  of  a 
public  franchise  is  derived.  A  franchise  is  very  often  a  permit  to  practice 
legalized  forms  of  extortion  from  the  public.  Among  gas  and  street  railway 
companies,  dividends  of  seven  and  eight  per  cent  are  the  usual  thing,  and 
some  pay  even  more  on  their  capital  stock.  Numerous  forms  of  stock- 
watering  are  devised  to  swell  the  profits  of  the  corporation  at  the  expense 
of  the  public.  Not  only  are  earning  capacity  and  surplus  capitalized,  but 
stock  is  issued  for  debts  improperly  contracted,  for  accumulated  and  some- 
times superannuated  property  which  is  of  no  use  for  the  public  service  in 
question,  and  for  duplications  of  plant  which  the  corporation  formed  by 
consolidation  proposes  to  continue  rather  than  eliminate.  Not  only  is  the 
capital  stock  swollen  to  needlessly  large  proportions,  imposing  a  serious 
burden  of  exorbitant  dividends  upon  the  public,  but  improvements  which 
might  bring  about  an  improvement  of  service  or  a  reduction  of  prices  are 
neglected.  Public  opinion  meekly  tolerates  all  this,  and  even  in  conservative 
Massachusetts,  where  the  checks  on  stock-watering  are  stronger  than  in  any 
other  state,  a  corporation  like  the  Boston  Consolidated  Gas  Company  was 
permitted  to  capitalize  a  debt  of  $6,000,000  without  being  called  upon  to 
show  for  what  purposes  this  indebtedness  was  contracted.  The  prevalent 
attitude  both  of  the  public  and  of  legislatures  regards  public  service  corpo- 
rations not  as  companies  organized  for  the  express  purpose  of  financing 
and  carrying  along  public  utilities  on  such  terms  as  the  state  may  direct,  but 
as  ordinary  commercial  enterprises  enjoying  the  right  to  wrest  all  the  profit 
the  law  will  allow  from  their  customers.  The  usual  view,  in  fac.,  is  that 
public  service  corporations  are  privileged,  like  all  commercial  enterprises, 
to  employ  distinctly  mercenary  methods  and  seek  to  .secure  large  profits, 
rather  than  that  they  are  safeguarded  investments  under  the  tutelage  of  the 
state  from  which  predatory  methods  should  be  rigidly  excluded  by  statute. 
In  accordance  with  the  prevailing  view,  the  license  to  engage  in  a  spoli- 
ation of  the  public  must  of  necessity  possess  great  commercial  value.  The 
misconception  which  disregards  the  nature  of  a  public  right,  treats  it  as 
a  business  asset,  and  exploits  it  to  the  injury  of  the  public,  is  thus  another 
cause  which  co-operates  with  the  concession  of  monopoly  to  give  to  public 
franchises  an  enormous  money  value. 

Jf  this  way  of  treating  a  franchise  as  a  business  asset  did  not  result  in 
extortion  it  would  be  a  very  different  matter.  As  a  matter  of  fact,  however, 
the  practical  results  are  pernicious.     The  corporation  which  regards  its  fran- 

(353) 


no  The  Annals  of  the  American  Academy 

chise  as  an  asset  will,  of  course,  seek  to  derive  advantages  from  it,  and  such 
advantages  are  close  at  hand  and  may  readily  be  turned  to  account.  Unless 
rendered  impossible  by  state  regulation,  the  most  natural  step  is  the  capital- 
ization of  the  franchise,  which  fastens  a  heavy  burden  upon  the  public.  As  a 
franchise  has  scarcely  any  fixed  commercial  value  independent  of  the  astute- 
ness of  the  corporation,  the  valuation  determined  for  the  franchi.se  can  hardly 
fail  to  be  excessive.  But  if  statutory  restriction  renders  the  capitalization 
of  the  franchise  impossible,  the  corporation  will  still  endeavor  to  obtain  the 
benefits  attending  its  permit  to  engage  in  commercial  exploitation,  and  will 
have  recourse  to  the  many  other  possible  methods  of  stock-watering  which 
present  themselves  as  possible  alternatives  to  franchise  capitalization.  Of 
course  if  the  public  treats  the  franchise  as  a  bonanza  the  corporations  will. 

The  cases  in  which  a  city  exacts  compensation  for  the  franchise,  in  the 
form  of  a  sale  or  lease  on  good  terms,  may  seem  to  contradict  the  foregoing 
argument.  For  if  the  city  exacts  a  price  fully  covering  the  value  of  the  con- 
cession, one  might  suppose  that  the  result  would  be  the  same  as  if  there 
had  been  no  concession.  But  the  objection  to  such  cases  is  that  the  corpo- 
ration will  naturally  seek  to  obtain  profits  far  in  excess  of  the  amount  to  be 
paid  the  city  for  the  franchise.  If  the  transaction  is  a  sale,  a  large  amount  of 
stock  will  be  issued,  and  by  a  swollen  capitalization  the  chance  for  concealed 
profits  becomes  highly  advantageous  to  the  purchasing  company.  Or  if  the 
franchise  is  disposed  of  on  a  lease,  the  corporation  will  find  a  way  to  pay  the 
lease  and  at  the  same  time  convert  it  into  a  source  of  profit.  It  is  not  to  be 
expected  that  corporations  will  treat  franchises  for  which  they  are  compelled 
to  pay  large  sums  as  anything  else  than  property  subject  to  the  ordinary  laws 
of  traffic  and  as  the  source  of  increased  income.  The  lack  of  enforced  public- 
ity in  the  accounts  of  the  public  service  corporations,  which  is  a  serious  want, 
is  especially  favorable  to  the  practice  of  methods  which  compel  the  public  to 
pay  more,  in  the  prices  of  utilities,  than  the  corporation  pays  the  city  for  the 
franchise. 

So  generally  is  the  practice  of  the  alienation  of  public  rights  for  pur- 
poses of  private  gain  tolerated,  that  it  is  difficult,  perhaps,  for  the  reader  to 
see  just  what  its  abandonment  would  entail.  The  reform,  however,  is  simple 
enough  in  principle.  Treat  a  franchise  as  a  grant  of  a  public  right  as  before,  but 
a  grant  which  does  not  destroy  the  character  of  the  public  right  by  transmuting 
it  into  a  commercial  concession.  Give  it  to  the  public  service  corporation, 
without  exacting  compensation  in  return,  and  do  not  permit  it  to  be  capi- 
talized. Treat  the  franchise  thus  disposed  of,  not  as  an  absolute  monopoly 
which  the  constitutional  safeguards  against  impairment  of  contract  compels 
the  state  to  protect,  but  as  a  monopoly  continuing  only  during  good  behavior, 
terminable  at  will  for  good  cause.  Above  all,  by  state  regulation  of  capi- 
talization and  enforced  publicity  of  accounts,  prevent  the  corporation  from 
treating  its  franchise  as  a  source  of  profit.  Let  it  earn  fair  dividends  on  the 
capital  actually  invested  for  the  public  good — dividends  based  on  the  market 
rate  for  funds  for  investments  possessing  the  same  low  degree  of  risk — and 
restrict  its  net  profits  to  such  dividends,  after  the  expenses  of  construction 
and  depreciation  have  been  provided  for.     The  enforcement  of  such  a  pro- 

(354) 


Communication  iii 

gramme  as  this  would  render  it  impossible  for  a  franchise  to  become  a  source 
of  income,  as  a  franchise. 

Obviously  if  a  franchise  is  not  to  be  dealt  with  as  a  business  asset  and  is 
prevented  by  stringent  regulation  from  becoming  a  source  of  profit,  it  cannot 
be  just  to  levy  a  tax  upon  it.  It  is  not  private  property,  for  the  reason  that  it 
has  no  economic  character  as  an  income-producing  entity,  and  it  therefore 
should  not  be  taxed  as  private  property.  As  a  matter  of  fact  the  adoption  of 
this  principle,  while  it  would  work  much  harm  under  the  prevailing  lax  condi- 
tions of  regulation,  would  not  he  injuricius  to  the  state  under  a  system  of 
strict  control.  Franchise  taxation  has  its  function  to  fulfil  as  a  check  on 
corporate  aggression,  and  as  a  moans  of  replenishing  the  public  coffers  with 
a  portion  of  the  treasure  extorted  from  the  customers  of  the  corporations;  but 
so  soon  as  proper  control  is  established,  the  need  of  such  a  restrictive  measure 
is  removed,  and  the  property  subject  to  such  taxation  is  taken  away,  for  the 
reason  that  taxes  should  not  be  levied  on  property  which  the  law  would  declare 
is  to  be  used  for  the  benefit  of  the  public  and  not  of  private  individuals.  There 
seems  to  be  the  rub — if  franchises  had  always  been  treated  as  public  rights,  even 
after  assignment  to  private  individuals,  the  interest  of  the  public  in  them  would 
have  been  constantly  perceived,  and  the  vexatious  confusion  of  public  service 
corporations  with  private  ones,  from  which  the  present  age  suffers,  would 
never  have  come  about. 

The  custom  of  taxing  public  franchises  which  is  so  generally  adcjpled, 
and  the  decisions  of  our  highest  courts  sustaining  the  practice,  are  by  no 
means  criticised  in  this  paper.  It  is  believed,  on  the  contrary,  that  with  mat- 
ters as  they  now  are,  it  is  better  that  franchises  should  be  taxed,  and  in 
many  states  they  are  not  taxed  as  severely  as  they  ought  to  be.  This  prac- 
ice,  however,  seems  to  the  writer  to  find  its  justification  in  the  existing  regime 
of  confused  public  rights  and  private  privileges.  As  soon  as  order  is  brought 
out  of  chaos  by  careful  and  accurate  delimitation  of  the  powers  and  duties  of 
public  service  corporations,  and  a  system  of  more  stringent  control  is  set  up, 
the  disadvantages  of  treating  franchises  as  sources  of  gain  and  subjects  of 
bargain  and  sale  will  be  realized,  and  it  will  be  seen  that  if  the  public  inter- 
est is  to  be  safeguarded,  public  rights  must  always  be  retained  under  public 
control,  and  likewise  the  individuals  or  corporations  permitted  the  use  of 
uch  rights  for  special  purposes. 

The  ideal  manner  in  which  public  franchises  should  be  appraised  has 
given  rise  to  so  much  difference  of  opinion  among  economists  that  we  can 
never  be  certain,  whatever  measures  are  adopted,  that  their  value  is  not 
underestimated  and  the' corporation  is  not  presented  with  a  bonus  which 
robs  the  public.  It  may  be  doubted  whether  this  problem  of  valuation  can 
ever  be  settled  to  the  satisfaction  of  any  considerable  number  of  intelligent 
citizens.  The  retention  of  franchises  as  public  rights  thus  holds  out  the  pros- 
pect of  more   effective  control  than  could  otherwise  be  secured. 

The  chief  factor  in  the  movement  toward  municipal  ownership  of  pub- 
lic utilities  is  the  absence  of  adequate  government  control  of  public  service 
corporations.  It  is  believed  that  the  treatment  of  franchises  as  private  prop- 
erty  increases   the   temptation   to   embark   in   municipal   ownership    ventures, 

(355) 


112  The  Annals  of  the  American  Academy 

It  certainly  is  favorable  to  overcapitalization ;  moreover,  as  we  have  seen,  ade- 
quate compensation  for  the  franchise  is  hardly  to  be  looked  for.  The  treat- 
ment of  franchises  as  public  rights  subjecting  the  grantees  of  the  use  of  those 
rights,  on  the  contrary,  to  certain  rights  and  duties,  might  solve  the  problem 
for  many  of  our  cities  which  are  vacillating  between  private  and  municipal 
ownership.  What  our  cities  greatly  require  is  a  system  in  which  the  advan- 
tages of  private  ownership  and  public  control  shall  if  possible  be  combined. 
Inasmuch  as  capital  to  be  devoted  to  the  public  service  can  readily  be  secured 
at  fairly  low  rates,  the  problem  is  not  really  so  formidable  as  it  appears, 
and  the  treatment  of  the  franchise  as  public  property  would  seem  to  furnish 
all  the  justification  needed  for  intervention  in  the  affairs  of  corporations 
exercising  public  rights  for  the  public  good. 


NOTES  ON  MUNICIPAL  GOVERNMENT 


Port  Administration  and  Harbor  Facilities 

A  SYMPOSIUM 

New  York  City.— J.  A.  Bensel,  Commissioner  of  Docks  and  Ferries,  New 
York  Cily. 

Chicago.— Frederic  Rex,  Assistant  City  Statistician,  Chicago,  111. 

Philadelphia.- Ward  W.  Piersox,  University  of  Pennsylvania. 

Boston. — Charles  H.  Swan,  Boston,  Mass. 

Buffalo'. —  F.  Howard  Mason,  Secretary  of  Chamber  of  Commerce,  Buffalo, 
N.  Y. 

New  Orleans. — James  J.  McLoughlin,  New  Orleans,  La. 

Detroit. —  Dei.os  F.  Wilco.x,  Ph.D.,  Secretary  of  Municipal  League,  Detroit, 
Mkii. 

Washington,  D.  C— Daniel  E.  Garces,  Secretary  Committee  on  Wharves, 
District  of  Columbia. 

Providence.— Frank  E.  Lakey,  Providence,  R.  I. 

Wilmington,  Del. — William  Coyne  and  John  N.  Lawson,  Jr.,  Wilmington. 

Duluth. —  Alfred  McCallum,  Duluth.   Minn. 

Tampa. —  J.  D.  Calhoun,  Secretary  of  Board  of  Trade,  Tampa,  Fla. 

London,  England. — Prof.    J.    Ritssell    Smith,   University    of    Pennsylvania. 

Manchester,   England. —  Erne.st  Smith  Bradford,  University  of  Pennsylvania. 

Hamburg  and  Bremen,  Germany. — S.  S.  Mlebner,  University  of  Pennsyl- 
vania. 

Barcelona,  Spain.— Chester   Lloyd   Jones,  University   of    Pennsylvania. 

Antwerp,  Belgium.— Henry   Rali'H   Ringe,   Philadelphia. 

NEW   YORK   CITY 

By  J.  A.  Bensel,  Commissioner  of  Docks  and  Ferries,  New  York  City. 

The  character  and  extent  of  the  shipping  which  enters  and  leaves  New 
York  is  very  diverse  in  its  character  and  comprises  practically  all  the  trades 
from  that  of  a  small  fishing  boat  to  the  largest  transatlantif'  liner.  The  total 
foreign  commerce  of  the  port  for  the  year  1906  was  $1,460,812,356  in  value, 
while  the  total  of  all  ports  of  the  United  States  was  $3,215,533,870. 

The  harbor  of  Greater  New  York  comprises  an  extent  of  about  450  miles 
of  water  front  of  such  a  character  as  to  provide  safe  accommodations  for  ves- 
sels of  all  classes,  and  docks  of  such   water  depth  as  to  allow   the  unload- 

(357) 


114  The  Annals  of  the  American  Academy 

ing  directly  from  the  ship  to  the  dock  and  I'icc  versa  without  trouble,  so 
far  as  weather  conditions  arc  concerned.  The  extent  of  the  harbor  above 
referred  to  includes  the  Boroughs  of  Brooklyn,  Queens,  Manhattan,  the  Bronx 
and  Staten  Island  (or  the  Borough  of  Richmond)  which,  in  length  of 
waterfront,  might  be  specified  as  follows :  Manhattan,  40  miles ;  Bronx,  105 
miles;  Brooklyn,  132  miles;  Queens,  lib  miles;  Richmond,  51  miles. 
But  only  125  miles  of  water  front  is  available  for  ocean  traffic. 

Manh-itten     Pronx  Brooklyn    Queens 
Miles  Mil.  s        Miles         MiL-s 

Available  for  Ocean  Traffic 7.50  ..  loi.io       13.25 

Not  available  for  Ocean    Traffic.   3-^-40  105.60  31-O     102.75 

Used  by  Railroads    2.22  1.80  o.oS        0.O3 

Used  by   Foreign    Steamships...  1.31  ..  2.15 
Used  by  Domestic   Steamships..  0.96  ..  2.00 
Used  for  General  and  Miscellane- 
ous   Wharfage    7.83  2.51  20.14       11.20 

Reserved  for   Parks    7.01  11.34  2.65 

Reserved  fur  U.   S.   Government  0.04  ..  2.17 


Rich- 
mond 
Miles 

Totals 

Miles 

3-25 

125.10 

47-75 

31970 

0.60 

5-33 

0.15 

3.61 

0.15 

311 

5.60 

47.28 

23.00 

0.80 

3.01 

51.00 

44480 

Total 39.90     105.60     132.30     116.00 

For  transatlantic  shipping,  the  facilities  are  available  along  nearly  the 
whole  extent  of  the  westerly  side  of  Manhattan  Island,  a  portion  of  the 
southerly  side  below  the  Brooklyn  Bridge,  and  a  portion  of  the  Borough  of 
Brooklyn  extending  for  about  five  miles  south  of  the  Brooklyn  Bridge. 

In  these  locations,  the  nature  of  the  shore  and  harbor  is  such  as  to 
allow  for  docking  the  largest  vessels  at  present  built.  At  other  sections  of 
the  waterfront  of  Greater  New  York  the  conditions  are  such  as  to  allow 
considerable  use  of  the  waterfront  for  railroad  purposes,  and  for  boats  plying 
on  the  rivers  and  canals,  and,  in  connection  therewith,  the  local  uses,  such  as 
transporting  supplies,  building  material,  grain,  feed,  etc.  A  considerable  por- 
tion of  the  waterfront  is  also  at  present  laid  out  as  a  park  system,  which  is 
principally  that  reaching  from  the  northly  end  to  the  center  of  the  western 
shore  of  Manhattan  Island,  and  a  portion  of  the  Borough  of  the  Bronx. 

At  the  present  writing  the  city  owns  almost  all  the  waterfront  in  the 
Borough  of  Manhattan,  with  a  small  ownership  in  the  Borough  of  Brooklyn 
and  in  the  Borough  of  the  Bronx,  and  practically  no  ownership  in  the 
Borough  of  Richmond.  The  Borough  of  Richmond,  although  of  large  extent 
in  waterfront,  has  only  a  small  portion  which  is  available  at  present  for  com- 
mercial development  on  account  of  the  exposed  condition  of  large  portions 
of  the  shore  along  the  southerly  and  easterly  sides  of  the  Island,  and  the 
hampering  conditions  to  the  size  of  piers  which  could  be  built,  and  the 
intensity  of  the  current  along  what  is  known  as  the  "Kill"  side,  that  is, 
the  northerly  and  westerly  sides  of  the  Island. 

Manhattan  Island  is  practically  all  developed  for  commercial  use.  Out- 
side of  the  Jamaica  Bay  district,  which  is  now  being  examined,  the  Borough 

(358) 


Port  Administration  and  Harbor  Facilities 


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(359) 


Ti6  The  Annals  of  the  American  Academy 

of  Brooklyn  has  one-third  of  its  waterfront  available  for  commercial  use. 
About  one-half  of  the  waterfront  of  the  Borough  of  Queens  is  available 
while  the  Bronx  is  developed  only  to  a  small  extent.  The  Borough  of  Rich- 
mond is  developed  to  the  extent  of  about  one-third  of  its  total  length  of 
waterfront. 

Organized  in  1870,  the  Department  of  Docks  and  Ferries  has  operated 
for  the  condemnation  and  improvement  of  the  waterfront,  starting  first 
on  Manhattan  Island.  Since  the  establishment  of  Greater  New  York,  it 
has  operated  over  the  whole  of  the  Greater  City.  The  purpose  of  organi- 
zation is  the  condemnation  and  use  for  the  municipality  of  the  waterfront, 
now  to  a  great  extent  (except  on  Manhattan  Island)  held  in  private  hands 
The  state  at  the  present  time  has  an  ownership  in  the  lands  under  the  water 
lying  outshore  of  the  waterfront  itself  to  some  extent  in  the  boroughs  of 
Richmond,  Brooklyn  and  Queens,  the  state  having,  in  the  boroughs  of  Man- 
hattan and  the  Bronx,  made  over  its  ownership  in  the  lands  under  water  to 
the  city  about  1876. 

The  management  of  this  water  front  is  vested  by  law  in  the  Commissioner 
of  Docks,  who  holds  office  at  the  pleasure  of  the  Mayor.  The  Commissioner 
has  general  jurisdiction  and  power  of  government,  but  he  cannot  lease  pro- 
perty except  with  the  approvel  of  the  Sinking  Fund  Commission. 

The  operation  of  municipal  ferries  which  is  now  being  taken  up,  is  an 
addition  to  the  previous  duties  of  the  Commissioner  of  Docks,  and  at  the 
present  time  the  city  is  operating,  through  the  Dock  Commissioner,  the 
ferry  from  the  foot  of  Whitehall  Street,  Manhattan,  to  Thirty-ninth  Street. 
Brooklyn,  and  from  the  foot  of  Whitehall  Street  to  St.  George,  Staten  Island. 

The  officers  who  directly  control  the  waterfront  in  so  far  as  the  berthing 
of  vessels  is  concerned,  are  known  as  dockmasters,  having  practically  all  the 
powers  formerly  vested  in  the  state  harbormasters  in  the  administration 
and  direct  government  of  the  waterfront.  These  dockmasters  are  appointed 
through  the  civil  service  by  the  Commissioner  of  Docks. 

The  income  of  the  department  at  present  amounts  to  about  $4,000,000 
a  year,  the  larger  portion  of  it  being  from  property  leased  to  individual?, 
corporations  and  companies  occupying  the  city's  piers  and  bulkheads.  All 
funds  received  by  the  Dock  Department  go  to  the  sinking  fund  for  tho 
redemption  of  the  city  debt. 

The  expenditures  of  the  department  are  provided  for  from  bond  issues 
amounting  to  not  over  $5,000,000  per  year,  except  by  the  concurrent  resolution 
of  the  Board  of  Estimate  and  Apportionment  and  the  Board  of  Aldermen. 


CHICAGO 

By  Frederic  Rex,   Assistant  City  Statistician,  Chicago,  111. 

The  harbor  of  Chicago  consists  of  the  Chicago  and  Calumet  rivers,  with 
their  branches,  forks  and  slips,  the  drainage  canal  and  the  waters  of  Lake 
Michigan  for  a  distance  of  three  miles  from  tlie  shore  between  the  north 
and  south  boundary  lines  of  the  city. 

(360) 


Port  Administration  and  Harbor  Facilities  117 

To  say  that  Chicago's  harbor  is  its  extended  lake  front  is  a  misnomer, 
save  for  an  "outer"  or  "Chicago  Harbor,"  which,  by  the  construction  of  a 
series  of  sheltering  breakwaters,  facilitates  approach  to  the  Chicago  river. 
On  good  authority  it  has  been  argued  that  the  city's  harbor  should  have  been 
created  in  the  lake,  yet  the  fact  remains  that  by  a  direct  inversion  of  the  fitness 
of  things  commerce  has  overlooked  its  opportunity  and  found  and  made  the 
harbor  of  the  city  in  the  Chicago  and  Calumet  rivers. 

The  Chicago  River,  which,  with  the  Calumet,  constitutes  the  inner  and 
actual  harbor  of  the  city,  one  mile  from  its  mouth  bifurcates,  forming  its 
north  and  south  branches,  the  length  of  the  main  stream  and  its  branches 
being  about  sixteen  miles.  Originally  a  stagnant  stream  with  but  little  flow 
and  having  a  maximum  depth  of  16  to  18  feet,  with  a  variable  width,  it  has 
been  slightly  widened  in  its  narrowest  parts  by  the  federal  government  and 
systematically  widened  in  its  south  branch  by  the  Chicago  sanitary  district, 
rendering  it  navigable  by  vessels  of  20  feet  draft  entering  from  the  lake 
for  the  full  length  of  the  main  river  with  the  exception  of  a  tunnel  obstruc- 
tion three-quarters  of  a  mile  from  its  mouth  which  limits  safe  navigation  to 
a  depth  of  sixteen  feet. 

The  south  branch,  which  has  been  widened  and  deepened  by  the  sanitary 
district  at  an  expense  of  over  $2,000,000,  has  a  navigable  depth  of  twenty  feet 
for  a  distance  of  six  miles,  with  the  exception  of  two  tunnel  obstructions, 
which  similarly  restrict  navigation.  Inasmuch  as  the  tunnels  were  by 
act  of  Congress  declared  "unreasonable  obstructions  to  navigation"  the  Secre- 
tary of  War  last  year  ordered  them  removed  or  lowered  so  that  there  shall  be 
a  clear  depth  of  twenty-two  feet  over  them  at  low  water.  The  work  of  lowering 
is  now  in  progress,  with  an  assurance  of  its  completion  before  the  beginning 
of  this  year's  navigation  season. 

The  south  branch,  being  the  main  artery  pulsating  with  the  city's  commer- 
cial activity,  six  miles  south  of  its  junction,  connects  with  the  sanitary  and  ship 
canals,  which  in  turn  joins  the  Des  Plaines  River  twenty-eight  miles  distant 
and  thence  carries  the  water  of  Lake  Michigan  through  the  Illinois  River  into 
the  Mississippi.  Having  a  width  varying  from  160  to  290  feet  and  a  depth  of 
22  feet,  its  value  as  an  aid  to  the  city's  commerce  will  be  most  felt  after  an 
estimated  outlay  by  the  government  of  approximately  $70,000,000  on  a  deep 
waterway  project,  entailing  extensive  improvements  along  the  rivers  con- 
necting Chicago  with  the  Gulf  of  Mexico.  The  north  branch  of  the  Chicago 
river  is  navigable  by  sixteen  feet  draft  vessels  for  about  six  miles. 

It  has  been  the  aim  to  secure  a  uniform  width  of  200  feet  in  the  main 
river  and  its  south  branch,  and  a  clear  navigable  width  of  140  feet  through 
the  draws  of  all  bridges.  It  seems  probable  that  this  improvement  will  be 
completed  within  the  next  two  years. 

The  Calumet  river,  about  ten  miles  south  of  the  mouth  of  the  Chicago 
river  and  its  active  rival  for  the  city's  trade,  has  been  described  by  Major 
Marshall,  government  engineer  and  a  competent  witness,  as  the  "finest 
harbor  on  Lake  Michigan."  Of  humble  beginnings  and  used  by  small  draft 
vessels  only,  it  has  by  virtue  of  government  favor  been  made  navigable  for 

(361) 


ii8  The  Annals  of  the  American  Academy 

the  largest  draft  vessels  on  the  Great  Lakes,  having  a  depth  of  twenty-two 
feet  and  a  variable  width  of  from  200  to  300  feet. 

The  waterfront  of  the  Chicago  River  is  irregular,  there  being  no  clear 
delimitation  of  dock  lines.  Business  firms  have  constructed  docks  jutting 
from  one  to  six  feet  into  the  river  beyond  the  line  of  neighboring  docks, 
such  construction  either  being  due  to  intentional  encroachments  or  unrestricted 
assertion  of  riparian  rights.  On  the  Calumet  River,  although  no  dock  lines 
have  been  established  by  the  city  authorities,  the  federal  government  has 
established  a  uniform  channel  beyond  which  it  has  refused  permits  for 
docks.  Center  pier  bridges  still  detract  from  the  appearance  of  the  harbor  front, 
but  it  has  been  the  tendency  of  the  sanitary  district  to  supplant  them  with 
improved  bascule,  or  rolling  lift  bridges,  as  fast  as  time  and  money  will 
permit.  The  possibilities  of  Chicago's  lake  shore  have  often  excited  the 
speculation  of  the  visiting  traveler,  and  justly  so.  However,  as  the  title  to 
the  submerged  lands  under  Lake  Michigan  is  in  the  State  of  Illinois, 
the  city  itself  is  unable  to  prevent  aggressions  upon  the  same  by  private 
parties.  Valuable  acres  of  "made"  land  along  our  lake  shore  are  to-day 
possessed  by  individuals  and  corporations  because  the  city  could  not  assert 
its  rights  and  the  state  was  passive. 

Shipping  activity  in  the  port  of  Chicago  has  been  practically  at  a  standstill 
for  the  past  ten  years,  and  while  easily  accounted  for,  presents  some  interesting 
facts  showing  the  gradual  transition  from  the  construction  of  freight-carrying 
vessels  on  the  Great  Lakes,  having  a  draft  below  sixteen  feet  to  great  steel 
steamers  having  an  average  draft  of  twenty  feet.  In  1890  the  tonnage 
of  18,472  vessels  entering  into  and  clearing  from  the  Chicago  River  was 
8.774.156,  having  an  average  cargo  of  475  tons,  while  1,661  vessels  arriving 
in  and  clearing  from  the  Calumet  River  had  a  total  tonnage  of  1,341,895,  or 
an  average  of  808  tons.  The  difference  is  apparent  when  the  carrying  trade 
of  the  two  rivers  is  compared  for  1906.  11,650  vessels  discharging  and  re- 
loading cargo  in  the  Chicago  River  last  year  had  an  average  cargo  of  858  tons 
while  the  1,947  vessels  in  the  Calumet  had  an  average  cargo  of  2,776  tons. 
In  1889  less  than  ten  per  cent  of  the  total  tonnage  of  the  port  of  Chicago 
entered  and  cleared  from  the  Calumet,  while  in  1906,  with  barely  one-sixth 
of  the  number  of  vessels  entering  and  clearing  from  the  Chicago  River,  it  had 
a  little  over  one-half  the  tonnage.  This  condition  of  affairs  would  appear 
anomalous  but  for  the  fact  that  the  vessels  entering  the  Chicago  River  are, 
and  must  necessarily  be,  vessels  of  small  draft,  and  consequently  small  tonnage, 
owing  to  the  presence  in  the  river  of  three  tunnels,  which,  although  as 
before  stated,  in  process  of  being  lowered,  have  limited  safe  navigation 
in  the  river  to  a  draft  of  about  sixteen  feet.  To  show  how  much  the  trade 
of  Chicago  has  suffered  and  the  proximate  cause  of  such  loss  one  may 
quote  from  Hon.  O.  H.  Ernst,  of  the  United  States  Corps  of  Engineers,  who 
says  in  a  report  made  to  the  Chief  of  Engineers,  May  26,  1904 :  "It  seems  to  me 
evident  that  the  trade  of  the  Chicago  River  was  bound  to  decline  when  the 
stream  ceased  to  have  the  capacity  necessary  to  accommodate  the  large  modern 
freight  carriers.  Obstructions  in  the  river,  such  as  encroaching  docks,  center 
pier  bridges  and  tunnels  become  more  and  more  serious  as  the  size  of  vessels 

(362) 


Port  Administration  and  Harbor  Facilities  1 19 

increases.  They  have  now  reached  the  stage  where  the  largest  and  most 
economical  freight  carriers  cannot  use  the  Chicago  River  at  all  except  near  its 
mouth.  Such  vessels  draw  about  twenty  feet.  The  depth  of  water  over 
the  tunnels  is  about  seventeen  feet  in  two  cases  and  about  eighteen  in  the 
third,  which  limits  safe  navigation  to  a  draft  of  about  sixteen  feet.  Large 
vessels  may  with  difficulty  get  by  the  other  obstructions  just  mentioned 
but  they  cannot  get  over  the  tunnels.  The  tunnels  are  the  most  serious 
obstructions  in  the  river  and  must,  I  think,  be  charged  with  the  greater 
part  of  the  loss  of  trade.  It  is  certainly  useless  to  hope  for  its  restoration 
before  they  are  altered.  It  is  more  probable  that  the  decay  of  the  river 
traffic  will  continue  until  that  is  done,  notwithstanding  that  the  other 
obstructions — center  pier  bridges  and  encroaching  docks — are  being  system- 
atically removed  by  the  trustees  of  the  sanitary  district.  If  the  extent  of  the 
injury  could  be  measured  in  money,  the  amount  would  undoubtedly  be  stated 
in  millions." 

As  an  example  of  how  great  an  "old  man  of  the  sea"  the  tunnels  have 
been  to  the  Chicago  River  it  may  be  instanced  that  often  shippers  of  grain 
have  bid  two  and  one-half  cents  per  bushel  freight  to  Buffalo,  notwithstanding 
that  at  Milwaukee  and  in  the  Calumet  River  there  was  a  surplus  of  vessels 
at  one  and  three-quarter  cents,  merely  because  the  large  steel  freighters, 
plentiful  at  Milwaukee  and  South  Chicago,  could  not  gain  entrance  into  the 
Chicago  River  to  take  cargo.  In  addition  the  smaller  boats  are  rapidly  being 
forced  from  the  Great  Lakes,  generally  being  old  and  unseaworthy.  carrying 
increased  rates  of  insurance,  and  it  has  been  predicted  that  within  the  next 
two  or  three  years  there  will  scarcely  be  five  per  cent  of  the  ships  on  the  lakes 
able  to  take  a  full  cargo  out  of  the  Chicago  River.  Nevertheless  its  com- 
merce during  the  past  year  amounted  to  10,000,580  tons,  the  principal  items 
being  grain,  lumber,  coal  and  salt,  while  that  of  the  Calumet  River  was 
5,404,620  tons,  principally  iron  ore,  grain  and  coal.  Because  of  its  accessibility 
to  great  freighters  its  trade  is  constantly  increasing  and  new  manufacturing 
plants  are  steadily  occupying  the  river  banks  as  fast  as  the  twenty-foot  depths 
are  carried  upstream.  This  sub-port  of  the  city  is  a  great  factor  in  controlling 
freight  rates,  effecting  a  saving  of  at  least  fifty  cents  per  ton  over  the  Chicago 
River  rates  and  considerably  more  over  the  current  South  Chicago  railroad 
rates.  As  soon  as  the  obstructions  which  now  impede  the  progress  of  the 
Chicago  River  shall  have  been  removed  and  the  stream  placed  on  an  equal 
footing  with  the  deep  and  broad  Calumet,  then  the  port  of  Chicago  will  in  a 
very  short  time  surpass  the  water-carrying  trade  of  New  York.  It  even  now, 
although  greatly  handicapped,  nearly  equals  the  commerce  of  that  port. 

The  facilities  provide  for  the  handling  of  cargoes  are  naturally  greatly 
dependent  on  individual  or  corporate  initiative  and  enterprise.  On  most  docks 
improved  machinery  and  methods  of  handling  cargoes  are  used.  Cargoes  of 
100,000  bushels  of  grain  are  loaded  within  five  hours  and  unloaded  in  six  hours. 
In  one  instance,  it  is  stated,  that  a  cargo  of  100,000  bushels  of  grain  was 
unloaded  with  a  loss  of  but  two  bushels.  It  takes  but  three  hours  to  load  a 
cargo  of  5,000  tons  of  ore.  Coal  drops  from  the  car-dumping  machines  or  con- 
veyancers into  the  holds  of  vessels,  which  three  hours  after  tying  up  at  the  dock 

(363) 


I20  The  Annals  of  the  American  Academy 

are  ready  to  sail  with  a  cargo  of  from  3,000  to  5,000  tons.     The  economic  han- 
dling of  freight  has  attained  a  high  state  of  perfection. 

The  only  property  along  the  Chicago  and  Calumet  rivers  which  may  be 
described  as  public  property  are  the  street  stub  ends  along  the  river  front 
belonging  to  the  city,  some  2,500  feet  of  dock  constructed  by  the  Chicago 
sanitary  district  on  the  south  branch  of  the  Chicago  River,  and  the 
entire  fifty  miles  of  dock  frontage  along  the  sanitary  and  ship  canal.  The 
large  number  of  other  docks  along  these  rivers  are  owned  by  private  parties, 
there  being  approximately  forty-five  miles  of  private  dock  on  the  Chicago 
River  and  ten  miles  on  the  Calumet. 

To  enable  the  city  authorities  to  handle  the  dock  question  satisfactorily  in 
the  future,  the  Rivers  and  Harbors  Committee  of  the  Chicago  Charter  Con- 
vention in  1906  submitted  to  the  latter  a  bill  authorizing  municipalities  to  own, 
construct  and  operate  "docks,  wharves,  elevators  and  warehouses"  as  well  as 
"railroad  tracks  and  machines"  to  operate  the  same,  with  the  right  to  issue 
bonds  for  their  acquisition  and  maintenance,  with  the  recommendation  that 
the   charter   convention   memorialize   the   State   Legislature   for   its   passage. 

Representative  Kittleman,  in  speaking  on  the  committee's  recomn»en(fetion, 
said :  "I  say  frankly,  with  reference  to  the  matter  before  us,  that  there  is 
nothing  in  the  charter  convention  that  means  more  to  the  city  commercially 
than  the  establishment  of  docks  in  a  great  harbor.  If  there  is  no  other  way 
of  getting  it  then  I  would  be  in  favor  of  the  city  owning,  establishing  and  con- 
trolling these  docks,  so  that  Chicago  would  become  what  it  ought  to  be,  one  of 
the  greatest  markets  in  the  w'orld."  Mr.  Joseph  Medill  Patterson,  until  recently 
Commissioner  of  Public  Works  of  Chicago,  one  of  the  chief  proponents  of 
such  municipal  docks,  states  that  the  same,  if  constructed,  could  be  leased  for 
enough  to  pay  the  interest  on  the  bonds  and  to  create  a  sinking  fund  for  the  ex- 
tinguishment of  the  original  investment.  Such  a  plan  could  not  be  considered 
radical.  It  would  be  merely  applying  historic  bourgeois  craftiness  to  a  state 
of  affairs  where  the  community  could  engage  in  an  enterprise  to  better  advan- 
tage than  a  private  individual.  The  realization  of  profits  is  not  the  chief  end 
of  a  system  of  municipal  docks.  Save  that  it  should  not  become  a  burden  to 
the  city  its  purpose  ought  to  be  the  development  of  the  business  and  prosperity 
of  the  port. 

The  harbor  officials  of  the  port  of  Chicago  consist  of  a  harbor  engineer, 
who  holds  office  under  the  civil  service  law,  a  harbor  master,  vessel  dis- 
patcher and  numerous  bridge  tenders,  who  are  appointed  by  the  Mayor  by  and 
with  the  consent  of  the  City  Council.  There  are  also  a  large  number  of  assis- 
tants to  these  officials,  a  number  of  whom  are  civil  service  appointees,  while 
others  are  exempt  from  the  operations  of  the  law.  These  officials,  by  the  pro- 
visions of  the  city  Ordinances,  have  a  jurisdictional  supervision  over  the  water 
area  of  the  Chicago  Harbor.  They  are  required  to  keep  the  docks,  bridges 
and  other  property  belonging  to  the  city  free  from  damage ;  maintain  a 
record  of  the  movement  of  all  vessels  navigating  the  harbor ;  regulate  the 
opening  and  closing  of  the  bridges  for  the  passage  of  vessels;  provide  ves- 
sel signals ;  report  upon  the  safe  or  unsafe  condition  of  private  wharves  and 
docks  and  require  all  private  parties  to  secure  permits  for  the  construction 

(364) 


Port  Adiniiiistrction  and  Harbor  l-'aciliiies  121 

of   the   same ;    prevent   all   encroachments   on   harbor    lines    and   remove   all 
obstructions  from  the  river. 

The  administrative  work  of  the  city's  harbor  officials  is  hampered  and 
retarded  in  usefulness  by  the  straightened  conditions  of  the  city's  finances. 
While  in  New  York  the  Department  of  Docks  has  floating  property  valued  at 
about  half  a  million  dollars,  consisting  of  derrick  boats,  steam  tugs,  steam 
and  naphtha  launches  and  the  like,  the  harbor  master  and  engineer  of  Chi- 
cago find  themselves  without  even  a  moderately  fast  dispatch  boat  for  inspect- 
ing and  patroling  the  harbor.  It  has  been  said  that  the  Chicago  harbor  engi- 
neer, on  a  voyage  of  inspection,  is  expected  to  cruise  about  in  a  row  boat 
among  the  ore-carrying  monsters  of  the  steel  fleet  in  the  waters  of  the 
Calumet.  The  doctrine  of  laissec  faire  certainly  has  had  a  liberal  appli- 
cation in  our  western  city,  it  having  been  well-directed  policy  on  the 
part  of  special  interests  to  keep  its  waters  as  free  from  restrictions  and  inter- 
ference as  the  complaisance  of  municipal  officials  and  the  community  would 
permit. 

There  are  no  wharfage  charges  fixed  by  city  ordinance  nor  are  any  levied 
by  the  city  harbor  officials.  The  only  revenue  derived  by  the  city  along  its 
lake  and  rivers  is  from  rentals  paid  by  private  concerns  for  the  use  of 
street  stub  ends  abutting  the  same.  Formerly  the  revenue  obtained  from 
these  stub  ends  was  not  very  substantial  or  satisfactory,  nearly  always  result- 
ing in  a  loss  to  the  public  treasury.  It  has,  however,  been  the  policy  of  the 
present  administration  to  exact  compensation  for  all  private  uses  of  public 
property,  and  during  1906  nearly  $15,000.00  were  realized  from  the  rental  of 
these  stub  ends.  The  amount  expended  in  1905  for  dock  and  street  stub  end 
renewals  was  $20,000,  the  sum  received  from  rentals  being  slightly  less  than 
in  1906.  Clearly  the  city  in  1905  lost  money  from  this  source,  but  then 
it  should  be  remembered  that  it  is  put  to  the  expense  of  maintaining  a- 
large  number  of  street  stubs  which  it  does  not  rent  or  use.  The  Chicago 
Sanitary  District  has  come  into  possession  of  2.500  feet  of  dock  along  the 
south  branch  whose  value  this  year  w'ill  be  $29,053.24,  based  upon  proposals 
for  leases  now  before  its  officials.  The  district  recently  has  called  for  bids 
for  leases  on  its  sanitary  and  ship  canal,  it  being  the  anticipation  of  its 
officials  to  secure  a  net  return  of  $500,000  from  this  source  annually,  within 
the  next  two  years,  with  an  eventual  aggregate  maximum  income  of  $1,500,000 
per  year. 

In  conclusion,  our  local  rivers,  aside  from  being  utilized  merely  as  high- 
ways of  water  transportation  should,  similarly  to  European  cities,  exhibit 
a  water  front  to  which  the  denizen  may  point  as  the  most  ornamental  section 
of  his  city.  Chicago  still  is  making  great  forward  strides  in  population  and 
wealth.  Surely  it  is  but  the  part  of  wisdom,  of  comprehensive,  expansive 
municipal  statesmanship  to  devise  plans  of  improving  its  rivers  and  lake, 
to  build  not  for  the  day  or  the  morrow,  but  for  posterity.  Let  the  experi- 
ence of  the  great  cities  of  the  old  world  be  its  example.  The  improvements, 
which,  if  made,  would  cost  the  present  generation  comparatively  a  trifle,  will, 
if  delayed,  cause  the  next  the  expenditure  of  vast  sums.  Where,  to-day, 
our  river  front  displays  decaying  wooden  docks  and  wooden  warehouses  stand- 

(365) 


122  The  Annals  of  the  American  Academy 

ing  on  the  water's  edge,  the  future  may  bid  us  hope  to  find  a  spacious  stream, 
nowhere  less  than  250  feet  in  width,  bordered  by  straight  and  regular  concrete 
or  stone  docks,  with  bascule  bridges  sweeping  across  its  full  width.  Turn- 
ing aside  from  this  comprehensive  scheme  of  improvement  to  matters  lying 
nearer  our  own  hands,  a  complete  survey  of  the  lake  shore  and  rivers  should 
be  made  by  competent  engineers,  and  after  a  concurrent  conference  between 
the  sanitary  district,  federal  government  and  city  authorities,  an  inclusive  and 
harmonious  plan  of  dock  lines  be  reported  and  embodied  in  an  ordinance  to  be 
passed  by  the  City  Council.  Because  of  the  city's  close  interest  in  the  contiguous 
submerged  lands  in  Lake  Michigan  and  it  being  a  matter  which  concerns 
the  municipality  solely,  the  State  Legislature  should  be  requested  to  vest  its 
present  title  to  the  same  in  the  City  of  Chicago.  This  will  enable 
the  city  to  deal  with  a  problem  which,  under  the  ownership  of  the  submerged 
lands  by  the  state  has  enabled  private  parties  to  surreptitiously  divest  the 
city  of  considerable  portion  of  its  splendid  lake  front. 

The  authorization  of  the  city  bj'^  the  State  Legislature  to  own  and 
operate  municipal  docks  w'ould  enhance  the  prosperity  and  business  of  the 
port  to  an  extent  beyond  belief.  Where  to-day  the  private  docks  are 
numerous,  ill-constructed  and  without  co-operation,  municipal  docks  here, 
as  in  New  York,  would  not  only  offer  a  uniform  plan  for  the  advancement 
of  commerce  but  provide  good,  substantial  and  cheap  places  for  the  handling 
of  cargoes. 

With  the  removal  of  the  river  tunnels  and  center  pier  bridges,  the 
dredging  of  the  river  to  a  regular  depth  of  twenty-six  feet  and  width  of  200 
feet  or  more,  as  well  as  using  the  Chicago  River  as  the  connecting  link  in 
deep  waterway  communication  via  the  Chicago  sanitary  and  ship  canal  and  the 
Illinois  and  Mississippi  rivers  to  the  Gulf,  the  port  of  Chicago  will  not  only  be 
the  chief  factor  in  the  trade  of  the  Great  Lakes  but  bids  fair  to  become  a  sea- 
port of  the  first  magnitude  and  the  great  central  market  of  our  continent. 


PHILADELPHIA 

By  Ward  W.   Pierson,  University  of  Pennsylvania. 

As  the  third  most  populous  city  in  the  United  States,  Philadelphia  should 
be  one  of  the  leaders  in  American  trade  and  enterprise,  yet  her  foreign  im- 
port and  export  trade  last  year  amounted  to  only  $160,000,000,  barely  ten 
per  cent  of  the  trade  of  New  York.  Baltimore  with  but  little  more  than 
one-third  the  population  has  a  foreign  trade  of  almost  an  equal  amount.  It  is 
said  that  America  has  four  great  doorways  to  the  great  Atlantic  highway, 
Boston,  New  York,  Philadelphia  and  Baltimore.  Philadelphia  may  be  a  door- 
way, but  it  is  far  from  being  wide  open. 

There  is  a  general  belief  that  the  port  of  Philadelphia  is  by  nature 
inferior,  and  this  is  often  alleged  as  the  reason  why  the  commerce  of  the 
port  has  not  increased  so  rapidly  as  that  of  other  sea-coast  cities.  But,  on 
the  other  hand,  Philadelphia,  for  natural  reasons,  should  be  the  best  port  on 

(366) 


Port  Administration  and  Harbor  Facilities  123 

the  Atlantic  seaboard.  Situated  well  inland,  102  miles  from  the  sea,  on  a 
broad,  straight  river,  close  to  the  center  of  one  of  America's  great  farming 
districts,  the  foundation  for  a  steady  agricultural  trade  is  well  laid.  In  addi- 
tion to  this  Philadelphia  is  a  terminus  of  a  great  railroad,  the  Pennsylvania, 
with  7,000  miles  of  track  spreading  out  into  the  middle  west  and  reaching 
into  the  very  center  of  the  granary  of  the  world.  Every  important  iron  manu- 
facturing plant  in  the  iron  and  steel  state  is  made  tributary  to  Philadelphia 
by  this  same  railroad.  If  there  was  nothing  more  to  be  said  the  foreign 
export  trade  of  the  Quaker  City,  in  grain  and  iron  products  should  be  second 
to  none  in  the  United  States.  Added  to  all  this,  Philadelphia,  is  the  terminus 
of  the  greatest  of  the  coal  roads — the  Reading,  which  owns  and  controls  the 
richest  of  the  anthracite  coal  lands.  The  manufacturing  industries  of  Phila- 
delphia are  more  numerous  and  diversified  than  those  of  any  other  city  in 
this  country,  with  a  single  exception.  Then,  too,  Philadelphia  is  ninety  miles 
nearer  to  Pittsburg — the  gateway  to  the  west  and  its  industrial  centers — • 
than  is  New  York.  It  is  nearer  to  Buffalo  toward  which  gravitates  all  the 
commerce  of  the  Great  Lakes.  It  is  nearer  to  the  great  oil  fields  of  Pennsyl- 
vania and  West  Virginia  and  the  terminus  of  many  oil-pipe  lines.  And,  as  if 
all  these  advantages  were  not  enough,  Philadelphia  has  a  further  advantage  of 
a  differential  freight  rate  over  New  York ;  but  for  some  unknown  reason  the 
ocean  freight  rates  via  Philadelphia  are  higher  than  those  via  New  York. 
With  all  these  advantages,  a  natural  situation  unequaled — with  natural  monop- 
olies without  a  rival  either  at  home  or  abroad,  Philadelphia,  as  a  commercial 
city  is  not  even  second  or  third  rate,  but  stands  absolutely  at  the  foot  of  its 
class. 

The  policy  of  Philadelphia  is  slowly  changing,  but  that  policy  always  has 
been  to  adhere  closely  to  the  belief  that  nothing  is  good  unless  it  has  endured 
for  a  hundred  years  or  more.  This  is  only  too  true  of  the  attitude  of  many, 
blinded  by  their  own  private  interests,  to  the  laws  which  now  govern  the  port. 
Not  four  years  after  the  death  of  George  Washington,  the  famous  Port 
Warden  Law  of  Pennsylvania,  in  reality  little  more  than  a  codification  of  the 
then  existing  laws,  was  passed,  and  that  is  the  law  under  which  the  port  of 
Philadelphia  is  to-day  administered.  Laws  that  were  made  in  days  when 
steam  vessels  had  barely  been  conceived  in  the  minds  of  their  inventors,  and 
when  a  voyage  across  the  Atlantic  was  a  question  of  months,  instead  of  days, 
these  are  the  laws  under  which  Philadelphia  is  endeavoring  to  carry  on  a 
trade  with  foreign  nations  to-day.  Slight  changes  have  been  made  from  time 
to  time  in  the  original  act  of  1803,  but  these  changes  have  been  always  to 
satisfy  private  interests,  while  the  interests  of  the  public  have  been  permitted 
to  grow  less  and  less.  So  far  as  its  administrative  features  are  concerned, 
there  stands  the  old  system— archaic,  antiquated,  worn  out,  a  monument  to 
the  past,  a  relic  of  the  days  of  the  alien  and  sedition  laws,  defying  age  and 
time. 

That  old  law  to  which  so  much  deference  has  been  paid,  and  to  which 
so  little  respect  is  due,  save  as  we  respect  the  dusty  mummies  of  long  for- 
gotten ages,  placed  the  administration  of  the  port  of  Philadelphia  in  the  hands 
of  three  authorities,  a  board  of  wardens,  now  eighteen  in  number;  a  harbor 

(367> 


124  The  Annals  of  the  American  Academy 

master,  and  a  master  warden.  The  president  of  the  board  of  wardens  admits  that 
they  have  insufficient  power  to  meet  present-day  conditions.  The  powers  of 
this  board  may  be  summarized  briefly  as  follows:  (i)  Power  to  license  pro- 
perty owners  to  build  wharves,  (2)  to  settle  disputes,  (3)  to  license  pilots. 
This  board  was  intended  to  be  an  efficient  body,  but  it  has  proved  to  be  quite 
the  opposite.  The  harbor  master  is  only  a  policeman  and  hitherto  has  done 
mostly  as  he  has  been  told.  The  present  incumbent  of  the  office,  however, 
is  asserting  all  the  powers  that  remain  in  this  office,  but  he  is  acting  under 
laws  104  years  old,  and  as  a  result  he  is  greatly  handicapped  in  everything 
he  undertakes. 

The  main  fault  lies  in  the  fact  that  the  authority  is  divided  and  that  the 
officers  are  generally  engaged  in  trying  to  do  as  little  as  possible.  As  a  result 
there  are  to-day  twenty  city  wharves,  and  there  are  only  a  few  more  owned 
by  the  city,  at  which  there  are  but  nine  feet  of  water  at  low  tide.  So  shallow, 
in  fact,  is  the  water  alongside  of  these  piers  that  the  city  fireboats  could  not 
get  close  enough  to  the  shore  to  do  efficient  service  in  case  of  a  conflagration. 
Theoretically,  every  pier  m  the  city  is  open  for  public  use;  actually,  along  the 
entire  waterfront  there  is  but  one  covered  pier  at  which  a  steamship  of  any 
considerable  draft  with  a  miscellaneous  cargo  can  unload.  The  other  piers  are 
private  or  are  leased  to  private  parties.  If  the  single  pier  just  referred  to 
happens  to  be  engaged,  a  tramp  steamship  that  does  venture  up  the  Delaware 
cannot  dock  unless  some  private  owner  will  permit  her  to  do  so,  and  then  only 
after  the  private  owner  has  fixed  his  own  wharfage  rates,  which  the  tramp 
can  pay,  or  get  out.  If  some  one  should  want  to  open  up  a  new  steamship  line 
from  Philadelphia,  there  is  not  a  single  pier  now  from  which  she  could  begin 
her  sailing.  Some  of  the  wharves  are  used  as  dumps  and  ash  heaps ;  some  as 
railroad  yards ;  others  are  rotten  and  decayed  and  sinking  below  the  surface 
of  the  water.  There  is  not  a  single  wharf,  public  or  private,  which  will 
accommodate  a  vessel  drawing  over  twenty-six  feet  of  water,  and  three-fourths 
of  them  will  not  accommodate  vessels  of  one-half  that  depth.  At  every  point 
the  interests  of  the  city  have  been  sacrificed  to  private  or  corporate  interests. 
The  law  now  in  force  requires  that  there  shall  be  a  certain  distance  between 
piers,  but  this  distance  may  be  departed  from  by  order  of  the  port  wardens. 
Interests  not  public  have  been  careful  to  purchase  lands  on  both  sides  of 
nearly  every  street,  and  on  that  land  to  erect,  close  to  the  property  line,  a  short 
pier  which  may  or  may  not  be  used,  but  which,  under  an  act  of  1868,  vests  in 
that  owner  for  all  practical  purposes  a  fee  in  the  wharf.  This  precludes  the 
city  forever,  except  after  condemnation  proceedings  or  purchase,  from  becom- 
ing a  competitor  at  that  point  because  the  street  is  not  ordinarily  more  than 
wide  enough  to  give  the  dock  space  required  by  law. 

To-day  the  warehouses  of  Philadelphia  are  bursting  with  goods  of  all 
sorts  and  descriptions,  waiting  for  transportation,  but  these  goods  must  go 
out  over  private  wharves.  The  belt  line  which  extends  for  six  miles  along 
the  river  front  was  intended  to  relieve  this  congestion  and  aid  the  indepen- 
dent owners  of  w^harves,  and  shippers,  but,  first  of  all,  it  was  intended  to 
connect  the  piers  with  each  other  and  with  the  storage  houses  along  the 
waterfront,   so   that  transfers   from   one   to   the   other   could  be  made   with 

(368) 


Port  Aduiinistration  and  Harbor  Facilities  125 

minimum  cost  and  with  minimum  loss  of  time.  Under  present  conditions 
the  shipper  can  neither  go  upon  a  wharf  unless  he  is  owner  or  lessee,  nor  can 
a  tramp  vessel  come  alongside.  If  one  wishes  to  send  goods  into  or  out  of 
Philadelphia,  he  must  do  so  by  way  of  an  established  line,  or  consign  them 
by  way  of  some  railroad. 

At  present  Philadelphia  possesses  about  eight  miles  of  available  water  front- 
age on  the  Delaware,  which  extends  from  Port  Richmond,  the  Reading  terminal 
on  the  north,  to  Greenwich  Point,  the  Pennsylvania  terminal  on  the  south. 
There  is  additional  frontage  on  the  Schuylkill,  but  it  is  of  minor  importance. 
The  ownership  of  the  wharves  is  both  public  and  private ;  the  control  of  the 
wharves  very  nearly  private  as  the  following  tigures  will  show :  Of  the  eight 
miles  of  available  water  frontage  on  the  Delaware,  the  City  of  Philadelphia 
owns  3,598  feet,  the  Pennsylvania  Railroad  Company  owns  9,951  feet,  the 
Philadelphia  and  Reading  9,200  feet,  the  Baltimore  and  Ohio  1,923  feet.  The 
balance,  16,787  is  controlled  by  private  interests  which  exercise  an  almost 
complete  monopoly  over  their  wharves.  These  figures  do  not  tell  all,  for  of 
the  3,598  feet  which  the  city  controls,  2,196  is  leased  to  private  interests 
leaving  1,402  feet  still  under  the  immediate  control  of  the  city.  Of  the  portion 
which  is  leased,  sufficient  is  in  the  hands  of  the  Pennsylvania  Railroad  Com- 
pany to  bring  the  total  frontage  under  the  control  of  that  company  up  to 
about  11,000  feet,  more  than  one-quarter  of  the  entire  Delaware  frontage. 

From  leases  and  rentals  of  wharf  property  the  city  receives  about  $68,000 
annually.  There  are  no  charges  for  wharfage  and  cranage  which  flow  into 
the  city  treasury,  for  there  are  practically  no  wharfage  facilities  whatever. 
Most  of  the  leases  expire  between  1912  and  1915,  so  that  if  the  city  should 
desire  to  operate  its  own  w-harves,  it  would  be  impossible  for  it  to  do  so,  for 
at  least  five  years. 

There  is  practically  no  expense  for  maintenance  and  renewals  or  new 
construction  because  no  effort  is  made  upon  the  part  of  the  city  authorities 
to  better  the  present  conditions  of  the  waterfront.  At  present  there  is  a 
great  effort  being  made  by  the  members  of  the  commerce  organizations  of  the 
city,  led  by  the  Maritime  Exchange,  to  have  a  new  law  passed  by  the  legis- 
lature, vesting  tbe  authority  heretofore  residing  in  the  harbor  master,  master 
warden  and  board  of  port  wardens,  in  a  department  of  the  city  government. 
This  movement  is  being  opposed  by  the  lumber  interests  and  some  of  the 
warehouse  interests.  AH  factions,  however,  are  agreed  that  something  must 
be  done,  if  the  port  of  Philadelphia  is  to  survive. 

By  190S  Philadelphia  will  have  a  thirty  foot  channel  to  the  sea  at  low 
tide;  Congressman  Burton  has  committed  himself  to  the  thirty-five  foot 
channel  project.  The  commercial  future  of  Philadelphia  is  bright,  provided 
it  meets  the  situation  squarely  and  puts  its  own  house  in  order;  but  until  the 
harbor  facilities  are  modernized  the  ocean-carrying  trade  must  remain  at  a 
standstill. 


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126  The  Annals  of  the  American  Academy 

BOSTON 

By  Charles  H.  Swan,  Boston,  Mass. 

The  port  of  Boston  is  the  natural  outlet  to  the  sea  for  eastern  and 
northern  New  England  and  a  large  section  of  eastern  Canada,  particularly 
during  the  winter  when  the  navigation  of  the  St.  Lawrence  River  is  closed. 
Passenger  steamers  leave  Boston  at  frequent  intervals  for  the  maritime 
provinces,  for  the  cities  of  the  Atlantic  coast  of  the  United  States,  for  the 
West  Indies,  and  for  Great  Britain  and  Mediterranean  ports.  Freight  ships 
arrive  and  depart  in  large  numbers  bearing  commerce  to  all  parts  of  the 
world.  Relatively  with  its  position  in  colonial  times  Boston  is  less  important 
as  a  shipping  focus,  but  actually  its  trade  is  of  great  importance  among  the 
ports  of  the  nation.  The  total  value  of  the  export  and  import  trade  for  1905 
was  $200,000,000.  Although  the  population  of  municipal  Boston  is  only 
about  600,000,  yet  the  wide  area  of  populous  suburbs  within  easy  access  gives 
the  business  community  the  commercial  position  of  a  city  of  a  million  and 
a  half. 

The  harbor  is  commodious  and  is  provided  with  islands  and  peninsulas 
with  a  very  extensive  waterfront  as  yet  only  partially  developed.  Originally 
the  shores  were  composed  largely  of  mud  flats  separating  the  deep  water  from 
the  upland,  but  in  the  older  parts  of  the  city  and  in  East  Boston  and  South 
Boston  much  filling  and  wharfing  have  been  done  from  time  to  time  until 
now  most  of  the  harbor  front  within  the  business  section  and  available  for 
ready  transshipment  is  occupied  by  almost  continuous  lines  of  substantial 
wharves.  These  are  mostly  wooden  structures  built  upon  piling  and  largely 
covered  by  great  wooden  sheds.  On  many  of  the  large  wharves  there  are 
good  warehouses  of  brick  and  stone,  mostly  dating  back  for  many  years, 
with  some  new  and  fine  structures.  The  facilities  for  handling  cargoes  are 
good,  but  might  be  greatly  improved  and  doubtless  would  be  if  the  Canadian 
business  of  the  city  were  not  hampered  by  the  tariff.  There  is  also  much 
complaint  about  the  difficulty  of  the  entrance  channels  of  the  harbor.  The 
largest  ships  have  to  wait  for  the  tide. 

The  ownership  of  the  wharves  and  the  commercial  waterfront  of  Boston 
is  largely  in  private  hands  either  individual  or  corporate.  This  is  the  out- 
growth of  gradual  development  from  colonial  conditions.  In  1647  the 
Colony  passed  a  celebrated  ordinance  declaring  that  private  titles  to  shore 
property  should  extend  down  to  low  water  mark  but  not  in  excess  of  one 
hundred  rods  from  shore.  This  has  been  tested  by  the  courts  as  a  modifica- 
tion of  the  rule  of  the  English  law  that  shore  property  was  presumed  to  stop 
at  high  water,  but  there  is  some  reason  for  believing  that  it  was  a  restoration 
of  an  earlier  English  practice  which  had  been  overthrown  by  the  royal 
power.  It  is  said  that  one  reason  for  the  colonial  ordinance  was  to  stimulate 
individual  enterprise  to  provide  wharfage  facilities.  At  any  rate  from  that 
time  to  the  present  the  great  bulk  of  wharfage  in  Boston  and  other  ports  of 
Massachusetts  is  in  private  hands.  There  are,  however,  many  small  public 
landing  places  reserved  along  the  shore  in  scattered  spots,  and  the  City  of 
Boston  owns  some  wharf  property,  but  only  as  isolated  parcels  and  not  as 

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Port  Adiiiiitistrafioii  and  Harbor  Facilities  127 

a  part  of  any  general  municipal   development.     Practically  the  city  owns  no 
waterfront  other  than  on  the  parkways. 

At  South  Boston  and  East  Boston  the  commonwealth  controls  some  of 
the  waterfront,  but  it  is  as  yet  undeveloped.  One  large  pier  has  been  built 
but  it  has  never  been  rented  and  is  not  shedded,  nor  has  it  at  present  any  rail- 
way connections.  The  commonwealth,  however,  has  undertaken  a  puljlic 
development  in  part  of  the  harbor,  and  has  established  harbor  lines  and 
channels  and  regulations  about  filling  private  flats  in  tide  water.  A  large 
section  of  flats  lying  north  of  South  Boston  was  outside  of  the  hundred  rod 
limit  of  private  ownership  and  was  therefore  in  the  full  control  of  the 
state.  This  the  legislature  some  years  ago  directed  to  be  filled  and  developed 
under  state  management  and  took  by  eminent  domain  a  large  adjoining 
area  of  private  fiats.  This  has  already  largely  been  filled  in  and  laid  out 
with  streets  and  with  a  proposed  deep-water  channel  for  approach.  The 
commonwealth  generally  retains  the  title  to  this  land  and  has  leased  several 
parcels  to  private  parties.  The  scheme  is  as  yet  in  its  infancy,  but  for  the 
management  of  these  and  other  lands  of  the  commonwealth  throughout  the 
state  there  is  a  permanent  board  of  harbor  and  land  commissioners.  This 
board  has  very  extensive  powers  about  filling  tide  waters,  making  harbor 
lines  and  channels,  leasing  state  lands  reclaimed  for  development  and  gener- 
ally in  protecting  the  public  lands  and  navigation  rights,  but  it  is  not  strictly 
in  any  sense  a  board  for  managing  the  movement  of  shipping.  Perhaps  it 
would  be  well  to  enlarge  its  powers  to  cover  the  whole  range  of  harbor 
facilities  and  navigation.  So  far  those  topics  lie  within  state  jurisdiction, 
but  with  the  present  system  of  the  private  ownership  of  wharves  the  more 
probable  policy  is  to  look  directly  to  the  federal  government  for  such 
matters  as  exceed  private  facilities  for  management.  The  current  river 
and  harbor  bill  in  Congress  carries  a  liberal  appropriation  for  deepening 
the  channel. 


BUFFALO 

By  F.  Howard  Mason,  Secretary  of  Chamber  of  Commerce,  Buffalo,  N.  Y. 

Buffalo  is  the  second  city  in  size,  population  and  wealth  in  the  State  of 
New  York,  and  is  the  eastern  terminus  of  deep-water  navigation  on  the 
lakes,  and  western  terminus  of  New  York  State's  famous  waterway,  the 
Erie  Canal. 

The  harbor  facilities  of  Buffalo  consist  of  an  "Outer  Harbor"  under  the 
jurisdiction  of  the  federal  government,  and  the  "Inner  Harbor"  under  the 
jurisdiction  of  the  City  of  Buffalo. 

The  outer  harbor  has  been  created  by  the  federal  government  by 
the  construction  of  a  breakwater  system  25,411  feet  in  length,  or  4.8  miles, 
the  longest  breakwater  system  in  the  world.  The  harbor  area  protected  by  this 
breakwater  system  covers  1.600  acres  of  which  approximately  900  acres  have 
a  depth  of  eighteen  feet  or  more.  This  is  the  largest  artificial  harbor  in  the 
world.     Total  cost  of  breakwater   system  $4,500,000. 

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128  The  Annals  of  tJie  American  Academy 

The  inner  harbor  has  been  created  by  the  City  of  Buffalo  by  the  deepening 
of  Buffalo  River  and  the  construction  of  an  artificial  channel  known  as  the 
Buffalo  Ship  Canal.  The  Buffalo  River  has  been  improved  for  the  distance 
of  2.5  miles,  which,  with  the  City  Ship  Canal  of  1.6  miles,  provides  a  total 
of  4.1  miles  of  dockage,  on  which  are  located  elevators,  freight  houses, 
warehouses,  malt  houses,  coal  and  ore  docks,  iron  furnaces,  etc.  The  city 
has  now  under  construction  a  project  for  the  further  improving  of  Buffalo 
River  by  widening  and  deepening.  This  will  provide  upwards  of  three 
miles  of  additional  water  frontage. 

The  following  table  shows  the  increase  of  net  registered  tonnage  arriving 
and  clearing  at  Buffalo  by  lake: 

■^     _  Total  No.  of  V  s  els  arriving  Total  net  registered  tonnage 

^^'^^-  and  cl  aring. 

1850  8,444 2,744,000  tons 

1870  10,625 4,158,000  " 

1S9O  9.762 7,556,413  " 

1900  9.973 10,701,222  " 

1906  8.557 13,989,517  " 

Canal. 

Year.  Tons. 

1850  500,000 

1870  1 ,873,000 

1890  1,601,000 

1906  1,756,081 

The  principal  articles  received  are  grain,  lumber,  iron  ore  and  package 
freight;  total  grain  receipts  for  1906  being  120,397,163  bushels;  flour,  10,279,384 
barrels;  iron  ore,  4,723,519  tons;  lumber,  194,165,476  feet;  shingles,  number, 
227,436,000.  Shipments  by  lake:  coal,  2,681,000  tons;  salt,  357,390  barrels; 
cement,  4,377,460  packages ;   sugar,  2,481,287  barrels. 

The  outer  harbor  at  present  is  largely  utilized  as  a  place  of  refuge  and 
for  mooring;  the  completion  of  the  breakw-ater  system,  however,  has  been 
followed  by  the  location  and  erection  of  the  plants  of  the  Lackawanna  Steel 
Company,  Buffalo  and  Susquehanna  Furnace  Company,  and  extensive  coal 
and  ore  docks  by  the  Pennsylvania  Railroad ;  the  frontage  being  controlled 
largely  by  railroads,  improvements  are  contemplated  for  erection  of  docks  and 
warehouses  along  waterfront. 

Located  along  tire  inner  harbor  are  the  grain  elevators  for  receiving  grain, 
coai  trestles  for  loading  coal,  iron  ore  docks  for  receiving  and  storage  of 
iron  ore,  and  furnaces  of  the  Buffalo  Union  Furnace  Company;  also  ware- 
houses and  freight  houses  for  the  receiving  and  loading  of  package  freight. 

The  docks  are  owned  and  controlled  by  private  interests  except  at  the 
foot  of  public  streets.  The  harbor  is  under  the  control  of  a  harbor  master 
appointed  by  the  Mayor,  and  the  city  has  been  fortunate  in  having  a  capable 
official  in  this  office. 

There  are  no  public  charges  for  wharfage. 


Port  Aduiinistratioii  and  Harbor  Facilities  129 

There  is  considerable  water  frontage  along  the  Niagara  River  in  Buf- 
falo, which  has  not  been  developed  to  any  great  extent  by  reason  of  the 
fact  that  the  rapids  at  the  head  of  Niagara  River  prevent  the  naviga- 
tion of  the  stream  by  deep  draft  water  vessels.  The  United  States  Govern- 
ment has  approved  a  plan  for  the  construction  of  a  ship  canal  and  lock  around 
the  rapids  at  the  head  of  Niagara  River,  and  work  is  now  being  done  upon  this 
improvement,  which,  when  completed,  will  open  up  for  additional  commer- 
cial and  industrial  enterprises  approximately  twenty  miles  of  water  frontage. 


NEW    ORLEANS 
By  James  J.  McLoughlix,  New  Orleans,  La. 

The  growth  of  the  port  of  New  Orleans  during  the  past  ten  years  has 
been  marked.  The  natural  outlet  of  the  great  system  of  rivers  that  thread 
the  Mississippi  Valley,  it  of  necessity  receives  an  enormous  volume  of  river 
traffic.  But  of  late  years  the  great  railroad  systems  have  wakened  to  its 
importance,  and  are  vying  with  each  other  in  acquiring  terminal  facilities 
there,  which  will  link  their  rail  transportation  agencies  with  the  rapidly  in- 
creasing lines  of  ocean  steamships  which  frequent  its  magnificent  harbor. 
With  a  harbor  inferior  to  none,  an  equable  climate,  with  no  snow  or  ice  to 
hamper  the  movements  of  commerce,  its  great  natural  advantages  are  now 
being  exploited  by  those  who  realize  that  we  only  need  the  proper  loading 
and  unloading  facilities  to  make  New  Orleans  the  greatest  port  in  America. 

Character  and  Extent  of  Shipping  Entering  and  Leaving  the  Port. — The 
improvements  at  the  mouth  of  the  Mississippi  River,  making  it  possible  for 
vessels  drawing  thirty  feet  to  enter,  have  greatly  increased  the  tonnage  enter- 
ing this  port.  For  many  years  the  ocean  tonnage  has  been  changing. 
Instead  of  a  large  fleet  of  sailing  vessels  coming  to  this  port,  there  are  now 
entering  a  larger  number  of  steamers,  of  which  the  tonnage  is  greater,  but 
the  number  is  less. 

The  extent  of  the  commerce  of  the  port  at  present,  can  be  best  given 
by  the  following  extract  from  the  report  of  the  Commission,  ending  August 
31,  1906,  viz : 

"  'Sea-going' — The  number  and  tonnage  of  vessels  arriving  at  the  port 
for  the  period  of  this  report  (year  ending  August  31,  1906),  as  is  shown  in 
tabulated  statement  was  1,505  vessels,  or  a  gross  tonnage  of  3,855,919  tons, 
of  which  3,040,668  tons  occupied  the  public  wharves,  about  seventy-nine  per 
cent  of  the  total.  The  wharfage  earned  from  these  vessels  was  $209,557.09, 
an  average  of  six  and  nine-tenths  (.069)  cents  per  ton. 

"'River  Traffic' — was  1,150  arrivals  of  steamboats,  59  transportation 
barges,  716  miscellaneous  arrivals,  consisting  of  flats,  coal,  gravel  and  stave 
barges,  tugs,  etc.,  and  2,140  arrivals  of  luggers,  and  gasoline  launches  engaged 
in  the  oyster,  fish  and  vegetable  trade." 

This  report  does  not  give  the  outgoing  vessels,  but  the  United  States  Cus- 
toms reports,  which  are  made  up  for  the  year  ending  December  31,  1906, 
show  the  following: — 

(373) 


130  The  Jiinals  of  the  A))ier{ca)i  Academy 

Arrivals  :  Number  Tonnage. 

Steamers  i  ,42(S 2,690,673 

Sailing  vessels 51 46,455 

Clearances : 

Steamers    i  ,466 2,763,842 

Sailing  vessels   ^j 3,1.662 

Nature  a)id  Extent  of  the  Harbor. — The  harbor  of  New  Orleans  com- 
prises botli  banks  of  the  ^Mississippi  River,  for  a  distance  of  about  fifteen 
miles  on  each  side,  from  Westwego  on  the  right  bank  to  Chalmette  on  the 
left  bank.  Westwego  is  the  terminal  of  the  Te.xas  &  Pacific  Railroad,  and 
Chalmette  is  the  terminal  of  the  New  Orleans  Terminal  Company,  whose 
tracks  are  connected  with  nearly  all  of  the  railroads  on  the  left  bank  of 
the  ri\-er.  The  river  is  from  one-half  to  three-quarters  of  a  mile  in  width, 
and  the  depth  within  ten  feet  from  the  banks  ranges  from  40  to  100  feet. 
The  harbor  is  well  sheltered.  The  current  of  the  river  is  not  too  strong  for 
unloading  in  mid-stream,  although  most  of  the  vessels  land,  broad-side,  along 
the  wharves,  which  are  constructed  on  piling  and  extending  out  into  the 
stream  from  50  to  100  feet  in  some  places.  This  whole  wharfage  front  on 
the  left  bank  of  the  river,  which  is  the  bank  on  which  the  greater  part  of  the 
New  Orleans  population  lives,  is  approached  by  streets,  and  by  lines  of  rail- 
road tracks  which  permit  cars  to  come  on  to  the  wharf,  loading  directly  into 
the  ships. 

Facilities  Provided  for  Handling  Cargoes. — On  the  right  bank,  at  the 
Westwego  wharf,  which  is  the  property  of  the  Texas  &  Pacific  Railroad,  there 
are  sheds,  wharves  and  tracks,  etc.,  capable  of  accommodating  six  or  seven 
ocean  steamers  at  one  time.  These  wharves,  as  stated,  belong  to  the  Texas 
&  Pacific  Railroad,  and  are  used  almost  exclusively  for  their  freight  shippings. 
About  four  or  five  miles  further  down  on  the  right  bank,  are  the  terminal 
facilities  of  the  Southern  Pacific  Railroad,  which  are  also  provided  with 
wharves,  etc.,  capable  of  accommodating  four  or  five  ocean  steamers. 

Several  miles  further  down  is  the  United  States  Naval  Station,  with  its 
large  floating  dock.  This  dock  is  seldom  used  by  the  government  for 
purposes  of  its  own,  and  by  consent  of  the  government,  when  not  used  b>' 
government  vessels,  is  utilized  in  repairing  vessels  of  the  merchant  marine. 

On  the  left  bank  of  the  river  there  are  nearly  five  miles  of  public  wharves, 
owned  and  operated  by  the  Port  Commission,  and  about  one  mile  of  private 
wharves  owned  by  various  railroads. 

The  public  wharves  are  now  being  covered  by  steel  sheds,  so  that  freight 
may  be  loaded  and  unloaded  in  any  kind  of  weather.  About  two  miles  of 
these  sheds  have  already  been  constructed,  and  the  remaining  three  miles 
will  be  covered  within  the  next  two  years. 

The  mechanical  appliances  used  for  loading  and  unloading  cargoes  are 
the  following:  for  sugar  and  molasses,  a  sort  of  endless  chain  contrivance 
is  used,  which  carries  the  sugar  and  molasses  between  wharves  and  boats. 
The  tropical  fruit  ships  use  an  endless  chain  to  which  is  attached  at  regular 
intervals  pouches,  into  which  bananas,  etc,  are  placed,  and  carried  from  the 

(374) 


Port  Administration  and  Harbor  Facilities  131 

hold  of  the  vessel  to  the  wharf.  As  stated  before,  in  most  ca^es,  spur  tracks 
run  from  the  main  railroad  tracks  to  the  ship's  side,  to  permit  direct  loading 
and  unloading. 

The  City  of  New  Orleans  is  now  constructing  a  belt  railroad  system, 
which  will  encircle  the  entire  city.  It  is  already  constructed  along  the  river 
front  for  a  distance  of  about  eight  miles,  serving  almost  all  the  wharves  along 
the  left  bank.  It  is  owned  entirely  by  the  City  of  New  Orleans,  and  will 
be  controlled  and  operated  by  the  city  government.  It  is  now  in  partial 
operation  and  will  be  in  full  operation  within  a  year.  When  completed  it  will 
connect  all  the  railroads,  and  will  he  a  cheap  and  rapid  method  of  transferring 
cars  from  one  railroad  system  to  another,  and  to  the  wharves. 

Ownership  of  Docks  or  Wharves. — The  ownership  of  wharves  is  vested 
in  the  State  of  Louisiana,  and  they  are  controlled  and  managed  by  the  Board 
of  Port  Commissioners  appointed  by  the  Governor  of  the  state.  This  board 
makes  rates,  subject,  however,  to  the  control  of  the  legislature.  Under 
legislative  authority,  the  port  commission  prescribes  all  the  rules  and 
regulations  for  loading  and  unloading  of  vessels  and  for  everything  connected 
with  the  commerce  of  New  Orleans,  in  so  far  as  use  of  the  wharves  is 
concerned.  The  board  is  composed  of  five  members,  who  are  appointed  for 
terms  of  five  years  each,  in  such  a  manner  that  not  more  than  one  commis- 
sioner's term  of  office  expires  each  year.  Previous  to  the  appointment 
of  this  board,  these  wharves  were  leased  to  private  individuals  who  used 
them  as  a  source  of  private  enrichment.  The  board  uses  the  revenues  solely 
in  improvement  of  the  wharves  and  extension  of  port  facilities.  The  board 
is  composed  of  prominent  merchants  and  business  men,  and  has  given  full 
satisfaction.  The  members  receive  no  compensation,  but,  of  course,  their 
subordinates  do.  These  subordinates  perform  their  work  well,  and  littlf 
or  no  complaint  is  ever  heard  against  them. 

Its  employes  comprise  a  superintendent  and  a  secretary  who  receive  each 
an  annual  salary  of  $3,000;  two  engineers,  receiving  annual  salaries  of  $2,400 
and  $1,600  respectively.  In  addition  there  are  four  deputy  commissioners 
and  one  collector,  a  superintendent  of  construction,  a  bookkeeper  and  twelve 
other  employes,  inspectors,  messengers  and  assistants.  The  total  cost  of 
administration  is  less  than  $35,000  per  annum.  The  board  also  maintains 
a  patrol  system  of  policemen,  imder  the  special  control  and  pay  of  the  board, 
at  a  cost  of  about  $22,000  per  annum. 

Nature  of  Charges  for  Services — There  is  no  charge  whatever  on  the 
cargoes  entering  this  port,  but  there  are  charges  for  wharfage  which  are  levied 
on  tonnage,  and  they  are  as  follows  ;  Ocean  vessels,  two  cents  per  ton  per 
day  for  the  first  three  days,  one  cent  per  ton  per  day  for  the  next  three 
days,  thereafter  free  for  a  period  of  thirty  days.  Where  sheds  are  provided 
an  additional  charge  of  one  and  one-half  cents  per  ton  is  made.  All  of  the 
above  charges  are  based  upon  the  gross  tonnage. 

There  are  also  charged  harbor  dues  of  $2.50  for  vessels  under  100  tons, 
$5.00  for  vessels  from  100  to  500  tons,  and  $10.00  for  vessels  over  500  tons. 
A  charge  of  $1.00  is  also  made  for  each  copy  of  certificate  issued,  for  the 
inspection  of  hatches,   surveys  or  cargoes,  etc.     The  masters   of  each  vesse! 


132  The  Annals  of  the  America)!  Academy 

however,   are   furuislied   free   one   copy  of  all   surveys   upon   their   respective 
vessels   or   cargoes. 

For  river  steamers,  barges,  luggers  and  other  craft,  using  the  wharves 
for  not  more  than  five  days,  a  charge  of  six  cents  per  ton  is  made,  and  for 
each  day  after  said  period  of  live  days  a  charge  of  $3.00  per  day  is  made. 
Steamboats,  etc.,  arriving  and  departing  more  than  once  a  week  are  charged 
three  cents  per  ton  each  trip.  These  charges  are  collected  from  the  owners 
of  the  vessels,  by  the  collectors  of  the  port  commissioners. 

For  the  year  ending  August  31,  1906,  the  receipts  from  sea-going  vessels 
were  $205,403.52  for  wharfage,  and  for  shed  charges  $14,906.11,  the  total  re- 
ceipts from  all  sources  during  the  year,  ending  August  31,  1906,  were 
$278,113.79.  Balance  on  hand  December  31,  1905,  $396,878.38.  The  dis- 
bursements were  $646,888.63 ;  the  greater  part  of  these  disbursements  was  for 
permanent  improvements,  such  as  sheds,  wharves,  etc.,  and  to  pay  for  real  estate 
fronting  on  the  river ;  the  balance  on  hand  in  December,  1905  was  principally 
composed  of  proceeds  of  the  sale  of  bonds  issued  during  the  year  before 
for  the  purpose  of  making  improvements. 

There  is  no  income  from  rentals,  leases,  etc.,  all  the  income  being  from 
the  sources  just  stated.  All  the  funds  received  are  used  for  the  improve- 
ment and  extension  of  harbor  facilities,  and  for  the  redemption  fund  to  retire 
the  bonds,  which  were  issued  for  the  improvement  of  the  wharves. 

Suggestions  for  the  Jinfrm'eiiieiits  of  the  Harbor. — The  United  States 
Government  appropriates  every  year  a  considerable  sum  for  keeping  the 
harbor  in  condition.  The  Mississippi  River  is  a  peculiar  stream;  its  banks  are 
lined  with  levees  which  in  the  City  of  New  Orleans  rise  several  feet  above  the 
city  proper,  and  the  wharves  are  usually  built  on  the  river  slope  and  extend 
over  these  levees.  In  the  commercial  part  of  the  city,  the  levees  are  very 
wide  and  slope  gradually  so  that  the  levee  is  hardly  apparent  to  the  view. 

The  changing  current  and  eddies  of  the  river,  frequently  after  a  high 
stage  of  water,  make  shoals  of  places  where  a  week  previous  there  were  fifty 
feet  of  water.  The  port  commissioners  keep  a  dredge  boat  continually  at 
work,  taking  away  the  silt  and  other  deposits  that  accumulate.  It  also 
maintains  a  fire  boat,  whose  services  are  given  free  of  charge  to  any  vessel 
or  any  dock  on  fire. 

The  port  commission  has  been  authorized  to  issue  $2,000,000  of  bonds 
to  build  sheds,  wharves,  paved  approaches,  and  other  port  improvements. 
It  has  issued  so  far  but  $750,000  of  these  bonds,  and  has  well  under  way  a 
comprehensive  system  of  sheds,  approaches  and  wharf  construction  which 
will,  within  the  next  five  years,  make  the  harbor  of  New  Orleans  second  to 
none  in  the  country.  What  is  now  needed  is  for  the  United  States  Gov- 
ernment to  improve  the  river's  mouth  and  banks  so  that  there  may  be 
no  obstruction  there.  Improvements  now  going  on  at  South  West  Pass — 
the  largest  of  the  river's  mouths — will  soon  give  us  another  hue  ocean 
outlet,  through  which  the  largest  ships  afloat  can  enter  the  Mississippi. 

Altogether,  the  vast  strides  our  local  commerce  is  making,  and  the  greater 
mpulse  that  will  be  given  by  the  construction  of  the  Panama  Canal,  and 
tue  impetus  already  felt  from  the  rapid  increase  of  railroad  terminal  facilities 

(376) 


Port  Adinlnistration  and  Harbor  FaciJifics  133 

here,  are  doing  wonders  for  New  Orleans.  The  commercial  and  manufac- 
turing interests  have  reason  to  congratulate  themselves  that  the  control  and 
management  of  the  harbor  and  port  facilities  that  mean  so  much  for  local 
progress,  are  now  taken  out  of  politics  and  in  control  of  practical  and  far- 
sighted  commercial  men,  fully  alive  and  equipped  for  the  work  they  have 
undertaken. 


DETROIT 

By  Delos  F.  Wilcox,  Ph.D.,  Secretary  Municipal  League,  Detroit,  Mich. 

The  most  notable  characteristic  of  the  water  traffic  at  Detroit  is  the 
passenger  service.  This  is  the  home  port  of  regular  and  e.xcursion  steamers 
to  Buffalo,  Cleveland,  Put-in-Bay,  Toledo,  the  river  islands,  Chatham,  St. 
Clair  Flats,  Port  Huron,  Alpena,  St.  Ignace  and  Mackinac.  The  number  of 
excursion  passengers  carried  is  larger  than  from  all  the  other  lower  lake 
ports  combined. 

The  passenger  steamers  also  carry  large  quantities  of  baggage  and  mer- 
chandise freight.  As  regards  bulk  freight,  very  little  coal  comes  to  this  port 
by  water ;  the  iron  ore  receipts  are  not  more  than  three  or  four  million  tons 
a  year;  a  considerable  portion  of  the  lumber  supply  is  brought  by  vessels 
owned  by  the  dealers ;  the  grain  shipments  eastward  amount  to  eight  or  ten 
million  bushels  a  year. 

The  harbor  consists  of  about  nine  miles  of  water  front  on  the  Detroit 
River  and  four  on  the  River  Rouge.  The  dock  line  on  Detroit  River  is 
nearly  straight,  with  from  twenty  to  forty  feet  depth  of  water.  There  arc 
no  mechanical  devices  furnished  for  unloading  cargoes  except  in  the  case 
of  coal  and  ore. 

The  city  owns  docks  at  the  water  works,  public  lighting  plant,  Owen 
Park,  Belle  Isle  Bridge,  and  the  Western  Boulevard,  although  none  of  these 
except  the  first  two. are  used  very  much  as  docks.  The  city  also  owns  docks 
at  the  foot  of  three  or  four  streets,  but  receives  no  rental  from  them.  The 
rest  of,  and  nearly  all,  the  docks  are  private  property. 

The  harbor  master  in  Detroit  is  an  officer  appointed  by  the  police  depart- 
ment. No  vessel  may  be  unloaded  at  the  public  wharves  without  his  per- 
mission. He  is  authorized  to  protect  the  owners  and  occupants  of  wharves 
and  docks  in  the  free  use  of  them.  He  has  authority  to  regulate  the  anchor- 
age of  vessels  and  to  give  directions  relative  to  the  location,  change  of 
station  of  steamboats  or  other  vessels  as  the  necessity  of  trade  and  naviga- 
tion may  demand,  with  due  respect  to  the  rights  of  occupants  of  wharves. 
In  case  any  boat,  vessel  or  wreck  is  sunk  or  deposited  intentionally  by  its 
owner  or  the  person  in  charge  at  any  point  in  the  Detroit  River  within  the 
limits  of  the  city  so  as  to  obstruct  navigation,  the  harbor  master  must  notify 
the  owner  or  agent  having  control  of  the  property  to  remove  it,  and  if  it  is 
not  removed  to  cause  it  to  be  taken  away  at  the  expense  of  the  delinquent 
party. 

(377) 


134  ^/'t'  Aiinah  of  the  American  Academy 

WASHINGTON,    D.  C. 

By  Daniel  E.  Gauges,  Secretary,  Committee  on  Wharves,  District  of 

Columbia. 

The  City  of  Washington  is  situated  on  the  eastern  bank  of  the  Potomac 
River,  io6  miles  from  its  mouth  and  about  185  miles,  via  the  river  and 
Chesapeake  Bay,  from  the  Atlantic  Ocean.  The  main  branch  of  the  river 
forms  the  southwestern  boundary  of  the  city,  and  it  is  joined  from  the  east 
about  three  miles  north  of  the  southern  apex  of  the  District  of  Columbia 
by  the  eastern  branch  or  Anacostia  River,  which  flows  through  the  District 
of  Columbia  in  a  southwesterly  direction  to  that  point.  The  river  is  navigable 
for  vessels  of  comparatively  light  draught,  but  the  channel  is  tortuous,  the 
prevailing  depth  being  about  thirty  feet. 

There  are  about  four  miles  of  harbor  frontage.  The  traffic  consists  of 
produce  and  small  freight  and  also  ice,  wood,  coal,  lumber,  etc.  The  amount 
of  freight   entering  and  leaving  the  port  is  about  878,823  tons  per  year. 

The  river  in  front  of  the  city  divides  into  the  Washington  channel,  the 
Georgetown  channel  and  the  eastern  branch.  The  wharf  property  along  the 
Washington  channel  is  owned  bj'  the  United  States  and  is  under  the  control 
of  the  Commissioners  of  the  District  of  Columbia.  The  wharves  are  leased 
to  steamboat  companies  and  commercial  concerns,  and  the  annual  rental 
amounts  to  about  $i6,coo.  The  wharf  property  along  the  Georgetown 
channel  is  owned  by  private  parties.  The  ownership  of  the  wharf  property 
along  the  eastern  branch  is  an  unsettled  question.  The  Washington  channel 
where  most  of  the  shipping  is  done,  has  a  Water  Street  front  from  80  to 
100  feet  wide,  which  gives  ample  facilities  for  handling  all  shipping. 

The  matter  of  patroling  the  harbor  is  under  the  police  department  and 
directly  in  charge  of  the  harbor  master,  a  lieutenant  of  the  police  force, 
whose  duties  are  to  see  to  the  proper  movement  of  vessels  in  the  harbor  anc 
a  general  policing  of  the  same.  The  matter  of  leasing  the  property  is  in 
charge  of  a  committee  on  wharves,  appointed  by  the  Commissioners  of  the 
District  of  Columbia.  All  funds  received  from  leases  are  deposited  as 
revenues,  one-half  of  which  go  to  the  District  of  Columbia,  a  municipal 
corporation,  and  the  other  half  into  the  Treasury  of  the  United  States. 

The  water  front  of  the  City  of  Washington  is  in  much  need  of  improve- 
ment. The  Congress  of  the  United  States,  which  makes  all  appropriationr- 
for  the  expenses  of  the  government  of  the  District  of  Columbia,  has  recog- 
nized this  by  providing  an  appropriation  for  the  preparation  of  plans  and  z 
survey  of  the  water  front,  with  a  view  to  its  improvement.  These  plan 
are  now  in  course  of  preparation,  though  no  plan  of  treatment  has  yet  beer. 
definitely  decided  upon.  Tt  is  probable,  however,  that  the  entire  water  front 
owned  by  the  United  States  will  be  reconstructed  with  concrete  docks  on 
piles ;  that  the  channel  will  be  widened  to  admit  of  additional  harbor  and 
shipping  facilities,  and  that  the  Water  Street  will  be  widened.  The  plan> 
will  possibly  involve  the  expenditure  of  a  million  dollars.  Among  the 
features  under  consideration  is  a  municipal  dock  with  a  recreation  pier. 

(378) 


Port  AdiJiinistration  and  Harbor  Facilities  135 

PROVIDENCE 

By  Frank  E.  Lakev,  Providence,  R.  I. 

The  character  of  the  shipping  entering  this  port  is  chiefly  coastwise. 
With  the  exception  of  an  occasional  two-master  to  the  Cape  Verde  Islands, 
there  is  no  transoceanic  trade.  Salt  from  Turks  Island,  and  lumber  from 
Nova  Scotia,  comprise  the  chief  direct  imports.  For  the  year  ending  Decem- 
ber 31,  1906,  the  harbor  master  reports  11,582  vessels  as  arriving,  of  which 
the  steamers  number  3,533;  tugs,  3,221;  barges,  1.535.  a"d  oyster  boats,  2,915. 
The  local  excursion  transportation  is  large  and  probably  makes  up  the  bulk 
of  the  1. 134.461  passengers  carried  last  year  by  steamers.  For  some  years 
two  daily  steamboats  have  left  for  New  York.  Recently  two  other  boats 
have  been  added.  A  line  runs  to  Norfolk,  Va.,  also.  The  total  merchandise 
for  the  year  was  3,086.000  tons,  of  which  that  brought  by  steamers  was 
753,465  tons.  The  ten  other  chief  items  were:  Coal,  2,133.772  (due  to  the 
extensive  mills  of  Providence  and  vicinity,  making  over  two-thirds  of  all 
merchandi.se  received);  oil,  43.209  tons  (12,451.332  gallons);  oysters  and 
oyster  shells,  43.081  tons;  lumber,  31.531  tons  (32.628.2go  feet):  iron,  8,166 
tons;  ice,  8,125  tons;  brick,  8.012  tons;  pipes,  6,574  tons;  chemicals.  4.971 
tons;  salt,  4.140  tons;  cement,  4.455.  Thus  the  trade,  exclusive  of  coal,  is 
seen  to  be  relatively  small,  despite  the  natural  advantages  of  the  bay  and 
harbor. 

The  nature  and  extent  of  the  harbor  requires  account  to  be  taken  of 
Narragansett  Bay.  This  bay  is  25.34  miles  long.  7.39  miles  middle  width. 
Its  tide-flowed  area  is  134.8  square  miles,  of  which  about  71.4  square  miles 
are  channels  and  .possible  anchorage  grounds.  Two  main  ship  channels, 
with  a  third  reaching  part  way  to  Providence,  "have  twenty-five  feet  at  mean 
low  water,  and  could  be  entered  from  the  sea  by  the  largest  vessels  without 
a  pilot."  With  so  secure  a  land-locked  harbor,  easy  of  access,  with  good 
railway  facilities  on  both  sides  of  the  bay  and  in  all  directions,  and  immense 
and  varied  manufactured  output,  "Providence  has  peculiar  advantages  of 
location  as  an  importing  and  exporting  station,  especially'  with  reference  to 
Atlantic  coastwise  traffic  south  of  Cape  Cod."  The  United  States  Govern- 
ment is  at  work  enlarging  the  anchorage  grounds  to  an  area  of  171  acres,  with 
a  depth  of  twenty-five  feet  at  mean  low  water. 

The  condition  of  the  water  front  at  the  present  time  is  encouraging  only 
in  the  possibilities  of  the  future.  Much  can  be  done  to  develop  and  attract 
trade.  Nature  has  been  kind,  but  for  the  300.000  or  more  persons  within 
ten  miles  of  the  City  Hall  the  amount  of  the  marine  transactions  is  not  an 
object  of  boasting. 

The  facilities  for  handling  cargoes  are  good,  but  crowded.  Spur  tracks 
run  on  the  docks,  reducing  the  handling  to  a  minimum.  The  proposed 
system  of  docks  on  both  sides  of  the  harbor  will  have  spur  tracks  on  each 
dock.  Easy  connections  north,  west  and  south  can  be  made  with  the  main 
lines  of  railways  without  grade  crossings. 

The  wharves  of  Providence  are  all  private  property  and  are  used  for 
specific  purposes.     Agitation  from   time  to  time   fo'r  public  wharves   as   yet 

(379) 


136  The  Annals  of  the  American  Academy 

has  borne  no  fruit.  The  management  of  the  harbor  is  in  the  hands  of  three 
harbor  commissioners,  elected  by  the  legislature,  and  a  harbor  master,  elected 
by  the  city  council.  The  excellence  of  the  service  of  the  chairman  of  the 
commission  is  attested  by  his  incumbency  for  thirty  consecutive  years — since 
its  organization,  in  1877.  The  income  from  rentals,  leases,  etc.,  cannot  be 
ascertained,  since  it  is  purely  a  private  matter. 

The  future  improvement  of  the  harbor  and  bay  presents  brilliant  pros- 
pects. By  act  of  the  legislature  $400,000  has  been  voted.  This  has  never 
been  appropriated.  The  state  is  to  be  asked  to  submit  a  proposition  to  the 
voters  to  issue  $500,000  state  bonds  for  harbor  improvement.  By  act  of 
Congress,  passed  in  1906,  $750,000  was  appropriated  for  Narragansett  Bay 
and  Point  Judith  Breakwater.  Of  this  amount  $500,000  is  to  be  spent  above 
Providence  Island,  i.  e.,  anchorage  for  Providence,  to  make  an  anchorage 
twenty-five  feet  deep  at  mean  low  water  and  400  feet  wide,  with  two  wide 
channels  direct  to  the  sea.  Thus  $1,650,000  will,  in  all  probability,  be  soon 
available  for  the  harbor  and  bay.  The  channel  of  the  Seekouk  River  has 
been  straightened  and  deepened,  rendering  easier  access  to  the  City  of  Paw- 
tucket.  When  the  railroad  bridge  over  this  river  (which  lies  directly  east 
of  Providence)  is  completed,  other  changes  are  planned  which  will  add 
greatly  to  the  usefulness  of  this  river. 

The  Harbor  Improvement  Commission,  composed  of  some  of  the  ablest 
men  in  the  state,  and  appointd  by  the  legislature,  in  their  report  for  1906 
say,  "Experience  and  the  process  of  reasoning  both  seem  to  indicate  that  the 
welfare  of  the  public  requires  the  public  ownership  and  control  of  at  least  a 
part  of  the  shore,  with  wharves,  slips  and  terminal  facilities  thereon."  It 
is  suggested  that  the  state  improve  one  or  two  wharves  at  a  time  and  lease 
for  fifteen-year  terms.  "Thirty  per  cent  of  the  water  front  could  be  thus 
held  and  controlled  for  the  public  use  and  benefit."  A  fifty-year  three 
per  cent  harbor  improvement  bond  could  be  placed,  and,  in  the  opinion  of 
the  commission,  not  only  would  no  burden  result,  but  the  amount  needed  to 
be  raised  by  general  taxes  would  be  lessened.  If  the  proposed  canal  con- 
necting Narragansett  Bay  and  Boston  harbor  were  built,  the  necessity  for 
the  improvement  of  the  harbor  would  be  increased.  In  twenty-six  years  the 
route  around  Cape  Cod  has  claimed  1,233  wrecks,  at  an  average  yearly 
property  loss  of  over  $500,000,  and  a  yearly  sacrifice  of  thirty  lives. 


WILMINGTON 

By  William  Coyne  and  John  N.  Lawson,  Jr.,  Wilmington,  Del. 

Wilmington  is  the  headquarters  of  the  largest  powder  and  explosive 
manufacturing  company,  has  the  largest  car  wheel  manufacturing  plant,  the 
largest  patent  leather  plant,  and  two  of  the  largest  morocco  leather  plants 
in  the  world.  Last  year  its  commerce  by  water  amounted  to  $72,000,000, 
and  by  rail  to  $120,000,000,  a  total  of  $192,000,000,  or  $2,230  per  capita,  which 
indicates  its  commercial  importance  and  its  need  of  water  and  rail  facilities. 

(380) 


Port  Administraiion  and  Harbor  Facilities  •    137 

Wilmington  has  three  rivers,  the  Brandywine,  Christiana  and  Delaware. 
The  Delaware  flows  along  its  eastern  border  three  miles.  The  Christiana, 
which  flows  through  the  manufacturing  district,  entering  the  Delawaiv' 
midway  between  the  northern  and  southern  borders  of  the  city,  has  a  channel 
18  by  150  feet  at  low  water  for  three  miles  from  its  mouth.  The  Brandywine 
flows  into  the  Christiana  three-quarters  of  a  mile  from  its  mouth  and  has  a 
channel  7  by  60  feet  at  low  water  for  one  and  a  half  miles. 

The  national  government  is  bulkheading  the  Delaware  one  and  a  half 
miles  along  the  eastern  city  line.  When  completed,  there  will  be  seventeen 
feet  of  water  at  low  tide  along  the  bulkhead,  gradually  deepening  to  the 
main  channel,  which  is  400  feet  from  the  bulkheading.  The  national  govern- 
ment is  now  dredging  the  Delaware  main  channel  to  make  a  30  by  600  feet 
channel  at  low  water  from  the  sea  to  Philadelphia,  it  being  to-day  less  than 
twenty-eight  feet  deep  at  low  water. 

The  theory  of  the  United  States  engineers  is  that  bulkheading  at  Wil- 
mington will  so  narrow  and  increase  the  current  that  the  30  by  600  feet 
channel  will  be  maintained  without  future  dredging.  This  will  tend  to  deepen 
the  water  between  the  bulkheading  and  the  main  channel,  but  if  it  does  not, 
little  dredging  will  be  required  to  enable  the  deepest  draft  vessels  to  lie 
alongside  the  bulkheading.  Material  taken  from  the  channel  is  being  used 
to  fill  behind  the  bulkheading,  thus,  without  any  expense  to  the  city,  providing 
a  wharfage  front  of  one  and  a  half  miles  on  deepwater.  The  water  front 
is  easily  accessible  to  any  of  the  three  railway  systems  that  serve  the  city, 
the  Pennsylvania,  Baltimore  and  Ohio,  and  Philadelphia  and  Reading  (all 
are  close  to  the  water  front),  or  to  any  other  interests  seeking  a  safe,  com- 
modious ocean  port. 

If  the  government  does  not  extend  the  bulkheading  futther  down  the 
river,  private  or  municipal  enterprise  can,  with  but  little  outlay,  provide  the 
additional  bulkheading  required  to  make  the  entire  three  miles  of  Delaware 
River  frontage  one  long  deep  water  wharf. 

Wilmington  is  within  seventy-two  miles  of  the  sea,  and  there  would 
seem  no  good  reason  why,  with  an  immediately  prospective  deep  water 
frontage  of  one  and  one  half  miles,  and  Christiana  River  frontage  of  six  miles 
of  eighteen  feet  depth  at  low  water,  it  should  not  provide  adequate  rail  and 
water  facilities  for  a  manufacturing  community  of  a  million  people  in  the 
near  future. 

At  present  the  shipping,  entering  or  leaving  the  port,  is  confined  to 
passenger  and  freight  lines  running  between  Wilmington  and  Philadelphia, 
Wilmington  and  New  Jersey  coast  points,  a  freight  line  between  Wilmington 
and  New  York,  and  numerous  coastwise  vessels  of  all  descriptions,  engaged 
in  transporting  raw  materials  to  and  finished  products  from  its  numerou? 
industries.  Ocean  steamers  of  deep  draft  are  discharged  or  loaded  in  the 
Delaware  River  by  the  use  of  car-floats  or  lighters.  Thirty  to  forty  such 
vessels  are  discharged  and  an  equal  number  loaded  annually.  The  Philadel 
phia  and  Reading  Railway  maintains  a  car-float  system,  serving  numerous 
industries  up  and  down  the  Delaware  from  Wilmington.  All  cargoes  are 
handled  to  and  from  vessels  by  hand  or  winches. 

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i^S    '  The  Annals  of  the  American  Academy 

The  city  owns  eight  docks,  averaging  fifty  feet  in  length,  along  the 
Christiana  on  the  eighteen  foot  channel,  which  it  leases  for  an  annual  rental 
of  $100  per  dock.  The  lessees  use  the  docks  for  their  private  business. 
Leases  are  for  three-year  periods.  Nearly  all  lessees  will,  for  a  nominal 
charge,  allow  goods  to  be  handled  over  their  docks,  so  long  as  it  does  not 
interfere  with  their  business.  Along  the  eighteen  foot  channel  of  the 
Christiana  River  front  15,000  feet  are  owned  and  used  by  industries  that 
have  more  or  less  dockage  facilities.  Practically  20,000  feet  of  the  Christiana 
River  frontage  toward  its  mouth  is  unoccupied.  The  present  plan  is  to 
narrow  the  Christiana  channel  by  building  wharves  or  piers,  and  thus 
increase  the  current  so  that  little  or  no  dredging  will  ever  be  required. 

The  proposed  deep  water  canal  between  Delaware  River  and  Chesapeake 
Bay  will  be  of  almost  immeasurable  importance  to  the  shipping  and  com- 
mercial interests  of  Pennsylvania,  New  Jersey,  Delaware,  Maryland,  Virginia, 
North   and   South  Carolina.     Wilmington   will  reap  its  proportional  benefit. 

Wilmington  waters  are  under  the  control  of  a  board  of  port  wardens, 
elected  by  the  city  councils  annually ;  they,  in  turn,  appoint  a  harbor  master, 
whose  duties  are  to  see  that  nothing  is  done  to  disturb  the  channels  or 
commerce,  to  regulate  speeds  and  to  settle  differences.  The  duties  of  all  are 
well  performed. 

There  seems  to  be  splendid  opportunity  for  the  municipality  of  Wil- 
mington to  acquire  all  the  frontage  along  the  Christiana  and  Delaware 
Rivers  not  occupied,  improving  it  by  erecting  wharves,  piers  and  docking 
facilities  as  necessity  therefor  arises,  and  leasing  them  at  low  rates  to  either 
private  or  public  enterprises.  So  situated,  the  city  would  be  able  not  only  to 
recoup  itself  on  the  investment  and  provide  a  continued  source  of  revenue, 
but  would  have  the  immense  advantage  of  being  able  to  offer  inducements 
to  large  manufacturing  or  transportation  interests,  to  whom  deep  water 
transportation,  added  to  adequate  railroad  facilities,  is  of  paramount  impor- 
tance. The  rail  and  water  facilities  of  the  larger  coast  cities  of  the  United 
States  are  to-day  abnormally  congested.  This  congestion  is  growing  daily. 
The  present  seems,  therefore,  a  most  opportune  time  for  cities  situated  like 
Wilmington  to  condemn  and  acquire,  at  a  reasonable  figure,  wharfage  prop- 
erty that  will,  with  improvement,  be  of  immeasurable  value. 


DULUTH 

By  Alfred  McCallum,  Duluth,  Minn. 

During  the  "Glacial  Period"  Lake  Superior  was  fully  500  feet  higher 
than  it  is  at  present.  The  action  of  the  waves,  at  that  time,  brought  about 
that  peculiar  formation  known  as  Minnesota  Point,  which  forms  a  natural 
breakwater  for  the  bays  of  Superior,  St.  Louis  and  Allouez,  which  are  the 
Duluth-Superior  harbor.  This  strip  of  land  is  fully  nine  miles  in  length, 
extending  from  Duluth  to  the  Wisconsin  shore.  It  is  cut  by  two  canals  a 
trifle  over  six  miles  apart,  known  as  the  Duluth  Ship  Canal  and  the  Superior 

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Port  Adniiiiistralion  and  Harbor  Facilities  139 

Entry.  The  Diiluth  Ship  Canal  was  originally  built  by  th»  City  of  Duluth 
in  1871 ;  was  rebuilt  and  enlarged  by  the  I'nited  States  Government  in  1898- 
1901  at  a  cost  of  $650,000.  The  Superior  Entry  was  originally  the  outlet 
of  the  St.  Louis  River  and  was  a  winding  channel  o-ver  a  shifting  sandbar, 
with  an  available  depth  of  nine  to  eleven  feet  and  difficult  to  follow.  This 
canal  was  originally  constructed  with  timber  piers  at  the  site  of  the  natural 
entrance  in  1867- 1875.  Reconstruction  with  concrete  piers  commenced  in 
1903  and  is  now  in  progress.  The  estimated  cost  of  reconstruction  is  over 
$1,000,000.  Through  these  two  arteries  of  commerce  passed  last  year  (1906) 
a  tonnage  of  29,171,221  short  tons,  valued  at  $251,894,844,  being  an  increase 
over  the  previous  year  of  28.64  P^r  cent,  and  an  increase  over  the  year  1890 
of  924  per  cent.  This  enormous  tonnage  would  provide  3,000  cargoes  for  the 
largest  freighter  on  the  lakes,  and  would  furnish  loads  for  all  the  cars  that 
could  be  gotten  on  a  three-track  railway  extending  from  New  York  to  San 
Francisco,  with  cars  of  a  capacity  of  40,000  pounds. 

Major  Graham  D.  Fitch,  in  charge  of  harbor  improvements  on  Lake 
Superior,  in  his  annual  report,  just  completed,  says:  "It  is  impossible  to 
give  precise  figures  of  the  marine  commerce  of  the  principal  ports  of  the 
United  States  for  comparison  with  the  Duluth-Superior  harbor,  for  the 
reason  that  at  ocean  ports  of  the  Linited  States,  as  well  as  of  foreign  coun- 
tries, no  record  of  domestic  tonnage  is  kept  at  the  custom  houses,  whereas, 
on  the  Great  Lakes,  a  record  is  kept  of  the  total  marine  commerce,  both 
foreign  and  domestic.  In  the  principal  ocean  ports  of  the  United  States  the 
tonnage  of  the  local  and  coastwise  (domestic)  marine  commerce  is  several 
times  greater  than  that  of  the  foreign." 

Any  comparison,  therefore,  of  the  relative  marine  commerce  of  lake  and 
ocean  ports,  based  solely  on  custom  house  records,  is,  for  the  reason  stated, 
incorrect  and  misleading. 

The  navigation  season  for  the  Duluth-Superior  harbor  averages  only 
about  eight  months  per  annum,  while  for  ocean  ports  navigation  is  carried 
on  during  twelve  months.  Considering  the  mean  monthly  freight  movement 
during  the  season  of  navigation,  Duluth-Superior  harbor  practically  stands 
next  to  New  York. 

The  strategic  position  of  Duluth  in  the  world  of  commerce  is  due  to 
this  magnificent  landlocked  harbor,  stretching  away  from  the  ship  canal  a 
distance  of  five  miles  to  West  Duluth  for  the  larger  vessels  and  then  on  to 
New  Duluth,  through  the  St.  Louis  River,  for  vessels  of  lighter  draft. 

Before  being  improved  the  harbor  was  a  broad  expanse  of  shallow  water, 
with  a  general  depth  of  only  eight  or  nine  feet,  except  along  the  channels, 
which  were  deeper,  but  variable.  A  great  deal  of  money  has  been  expended 
on  these  channels  by  the  government.  By  an  act  of  Congress  in  1896  con- 
tracts were  let  for  the  removal  of  21,000,000  yards  of  earth  at  an  estimated 
cost  of  $3,130,553,  this  being  the  largest  dredging  contract  ever  let  in  the  United 
States.  The  operations  just  described  .have  given  fully  seventeen  miles  of 
dredged  channels  from  120  to  600  feet  wide  and  basins  of  an  aggregate  area 
of  about  360  acres.  The  general  depth  is  twenty-two  feet,  and  no  part  of 
the  dredged  area  has  a  less  depth  than  twenty  feet  at  low  water.     This  work 

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I40  The  Annals  of  the  American  Academy 

gave  us  a  harbor  frontage  of  forty-nine  miles,  lined  with  docks  equipped  for 
the  loading  and  unloading  of  almost  every  kind  of  merchandise.  Every  year 
millions  of  feet  of  logs  are  rafted  through  the  canals  to  be  sawed  into  lumber 
at  the  local  mills  and  then  loaded  on  vessels  for  transportation  to  lower  lake 
ports.  There  are  numerous  coal  docks  equipped  with  the  most  modern 
machinery  for  the  speedy  and  economical  unloading  of  vessels,  the  coal  to  be 
again  loaded  on  cars  for  distribution  to  the  great  Northwest.  The  railroad 
docks  are  equipped  for  the  handling  of  package  freight,  and  grain  with  which 
the  elevators  are  full  to  bursting  at  this  season  of  the  year  from  the 
farms  of  Minnesota,  the  Dakotas  and  even  from  the  Canadian  Alberta 
country.  Last  and  greatest  come  the  iron  ore  docks,  from  which  was 
loaded  last  year  19,368,186  tons,  with  a  valuation  of  $48,420,464.  This  mineral 
makes  up  about  two-thirds  of  the  total  tonnage  of  the  Duluth-Superior  harbor. 

The  city's  interest  in  the  harbor  is  looked  after  by  a  harbor  matser,  who 
performs  his  duties  in  a  satisfactory  manner.  He  has  to  decide  between 
vessels  their  right  to  a  certain  dock,  to  prevent  the  obstruction  of  slips  by 
vessels  laying  at  the  head  of  a  dock,  to  prevent  dumping  ashes  in  the  bay, 
and  to  take  care  of  the  city's  interest  in  the  harbor  generally. 

The  municipal  docks,  of  which  there  are  several,  are  built  at  the  end  of 
streets  or  avenues,  and  are  used  principally  for  ferry  purposes.  They  are  kept 
up  by  the  city,  and  no  revenue  is  collected  for  their  use. 

The  water  of  the  St.  Louis  River  is  diverted  at  Thompson  by  the  Great 
Northern  Power  Company,  who  have  developed  30,000  electrical  horse-power 
under  a  fall  of  378  feet.  This  has  been  brought  to  Duluth  and  is  now  almost 
ready  for  distribution.  The  company  expect  ultimately  to  develop  and 
install  an  additional  110,000  horse-power  to  operate  under  a  fall  of  740  feet. 
What  this  will  eventually  mean  to  the  financial,  commercial  and  shipping 
interests  of  Duluth  can  more  readily  be  understood  when  it  is  known  that 
less  than  20,000  horse-power  is  used  at  the  head  of  the  lakes  to-day. 

The  widening  of  the  entry  of  the  Duluth  Ship  Canal  allows  the  waves 
a  greater  sweep  into  Superior  Bay,  and  as  a  result,  when  a  northeast  wind 
is  blowing,  which  is  the  prevailing  wind  at  certain  seasons  of  the  year, 
boats  find  it  next  to  impossible  to  lie  at  their  docks.  One  boat  last  year 
broke  fifteen  six  and  one-half  inch  lines  while  unloading  her  cargo.  This 
condition  has  made  a  problem  which  the  government  engineers  are  attempting 
to  solve.  Several  schemes  have  been  proposed,  but  the  one  that  seems  to 
meet  with  the  greatest  favor  here  is  that  of  constructing  a  breakwater  about 
a  mile  from  the  canal  to  extend  from  the  land  a  sufficient  distance  out  into 
the  lake  to  protect  the  entrance  to  the  harbor. 

No  description  of  the  harbor  would  be  complete  without  some  mention 
of  the  Aerial  Bridge,  which  spans  the  Duluth  Ship  Canal  at  Lake  Avenue, 
and  is  the  only  one  of  its  kind  in  the  world.  Before  the  bridge  was  buiU 
transportation  was  done  by  ferry,  which  was  inadequate  and  expensive. 
Many  different  kinds  of  bridges  were  suggested  to  the  government  engineers. 
but  none  met  with  their  approval,  as  they  were  likely  to  interfere  with  navi- 
gation.     After    receiving    suggestions    from    others,    Thomas    F.    McGilvray, 

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Port  Adnunistration  and  Harbor  Facilities  14T 

city  engineer,  linally  evolved  tlie  present  plan,  which  was  accepted  by  the 
government  engineers. 

The  opening  between  towers,  which  signifies  practically  the  length  of 
the  bridge,  is  394  feet.  The  lower  truss  of  the  bridge  is  135  feet  from  the 
water  and  the  upper  chord  is  185  feet  above  water  level.  Its  actual  weight 
is  3.337-000  pomids,  and  it  cost  $108,000.  The  car  will  hold  400  people  and 
four  teams  and  is  operated  by  means  of  a  trolley  wire  and  a  cable,  which  is 
wound  around  a  steel  drum,  the  controllers  and  motors  being  aboard  of  the 
car. 

The  cheapness  of  freight  rates  by  water  gives  Duluth  the  key  to  the 
situation  as  a  distributing  point,  and  will  eventually  build  up  here  the  largest 
wholesale  center  for  that  great  empire  of  the  Northwest. 


TAMPA 

By  J.   D.   C.^LHOUN,  Secretary  of  Board  of  Trade,  Tampa.  Fla. 

There  are  four  ports  located  on  Tampa  Bay — Port  Tampa.  Tampa.  St. 
Petersburg  and  the  Manatee  River — naming  them  in  the  order  of  their 
present  dimensions,  business  and  activity.  For  all  practical  purposes  only 
the  two  first  named  need  consideration  here.  Port  Tampa  is  located  on  Old 
Tampa  Bay.  nine  miles  southward  from  the  city.  The  port  of  the  city  itself 
is  located  on  the  upper  end  of  Hillsborough  Bay  and  along  the  Hillsborough 
River  for  perhaps  four  thousand  feet  above  the  mouth.  This  port  is  under- 
going enlargement  and  development  to  a  depth  of  twenty  feet  in  its  channel 
and  slips,  with  the  erection  of  a  complete  system  of  commercial  terminal 
facilities — a  work  which  will  be  practically  completed  within  a  year. 

Both  these  harbors  are  completely  landlocked  and  sheltered  from  wind 
and  w^ave,  and  are  situated  inland  respectively  twenty-nine  and  thirty-eight 
miles  from  the  Gulf.  The  facilities  of  Port  Tampa  are  complete  in  every 
essential  respect,  and  vessels  drawing  twenty-four  feet  of  water  may  anchor 
in  the  slips.  The  water  front  is  in  the  best  and  most  improved  condition, 
and  the  facilities  for  handling  cargoes  are  sufficient  and  modern.  This  same 
description  will  apply  to  the  immediate  harbor  of  Tampa  within  a  year — 
with  the  e.Kception  that  the  channel  depth  will  be  but  twenty  feet. 

The  number  of  seagoing  vessels  arriving  and  departing  from  Port  Tampa 
during  the  year  1906  was  903,  with  merchandise  tonnage  of  968.951  tons,  of 
which  529,268  was  phosphate  for  export. 

The  commerce  of  Hillsborough  Baj',  being  more  largely  local,  was  car- 
ried on  by  smaller  vessels  and  marked  by  much  greater  activity.  The  number 
of  arrivals  and  departures  was  2,147  and  2,143,  respectively,  and  the  actual 
tonnage  of  merchandise  conveyed  was  432.981. 

The  ownership  of  docks  and  wharves  is  private  in  both  ports — the 
Atlantic  Coast  Line  Railway,  by  a  subsidiary  company,  owning  the  facilities 
at   Port  Tampa,   and   the   Seaboard   Air   TJne   Raihvav  beins-  engaged   in   the 

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142  TJie  Annals  of  the  Ajiiericaii  Academy 

work  of  enlargement  and  construction  at  Tampa.  At  Tampa  there  are  many 
commercial  houses  owning  their  own  frontage  and  facilities  for  shipping, 
these  facilities  being  necessarily  somewhat  crude. 

The  maintenance  of  condition  is  a  matter  attended  to  by  the  owners, 
except  that  the  government  maintains  the  condition  of  the  various  channels 
which  it  constructed.  This  is  almost  a  negligible  item,  on  account  of  its 
smallness. 

The  harbor  officers  consist  of  a  harbor  master  and  six  pilots,  with  a 
practically  nominal  commission  for  the  selection  of  the  master  and  pilots — 
the  harbor  master,  however,  being  actually  designated  by  the  governor  of 
the  state.  He  has  no  specific  salary,  but  it  is  understood  that  he  receives 
compensation  from  the  pilots'  association.  The  duties  of  the  harbor  master 
are  very  slight.  The  pilots  are  efficient.  Their  charges  are  collected  from  the 
vessels  employing  their  services,  and  such  service  is  compulsory  with  few 
exceptions.  Charges  for  towage  are  a  matter  of  private  arrangement  between 
the  tugs  and  the  vessels  employing  them. 

The  wharf  business  being  entirely  private — except  as  the  Atlantic  Coast 
Line  is  required  to  publish  a  schedule  of  charges— there  is  no  way  of  ascer- 
taining the  sum  of  the  moneys  received  from  charges,  rentals,  etc.,  or  the 
disposition  of  the  same. 

As  regards  the  improvement  of  the  harbors  and  bettering  the  facilities 
for  commerce,  the  situation  is  such  that  there  is  nothing  needed  which  does 
not  promise  soon  to  be  supplied.  With  the  increase  of  traffic  that  will  be 
developed  by  the  deeper  channel  and  early  improvements  at  Tampa  there 
will  doubtless  be  a  demand  for  an  increased  depth  of  the  channel.  A  need 
common  to  the  entire  bay  is  a  depth  of  thirty  feet,  with  a  width  of  300  feet 
over  the  outer  bar  at  Egmont  Pass,  and  a  gradual  deepening  of  all  inside 
channels  and  slips  to  a  like  depth  as  the  requirements  of  commerce  demand. 


FOREIGN  CITIES. 

LONDON,    ENGLAND 

By    Prof.    J.    Russell    Smith,   University   of    Pennsylvania 

Almost  every  city  in  the  whole  world  having  any  great  commercial 
importance  has  a  port  problem  demanding  that  something  shall  be  done  for 
the  improvement  of  existing  conditions.  It  has  come  about  through  the 
territorial  division  of  labor  which  has  caused  the  bulk  of  foreign  commerce 
to  increase  tremendously  and  continuously  in  every  quarter  of  the  globe. 
Along  with  this  growth  of  trade  has  been  a  growth  in  the  size  of  the  ships, 
commanding  not  only  more  space,  but  also,  what  is  of  even  greater  cost, 
more  depth. 

Great  Britain,  being  the  leader  in  nineteenth  century  commerce,  had  the 
port  problem  to  meet  and  settle  earlier  than  other  countries,  and  it  met  the 
situation   in   the   first   half   of   the   nineteenth    century  by   private   enterprise. 

(386) 


Port  Administration  and  Harbor  Facilities  143 

Scores  of  dock  companies  were  formed  to  improve  the  various  ports,  some- 
times several  of  them  in  one  port.  These  were  private  corporations  seeking 
profits,  just  as  a  railway  or  any  other  transportation  company  does.  Un- 
fortunately for  these  investors,  the  conditions  did  not  favor  the  permanent 
success  of  their  enterprise;  for  a  few  decades  all  went  well,  and  then  the 
mid-century  spurt  of  British  rommerce  caused  them  to  become  inadequate. 
The  introduction  of  the  steamtr  also  made  many  of  the  docks  out  of  date, 
because  a  large  new  vessel  could  not  enter  the  old  dock.  The  increase  in 
trade  and  increase  of  steamer  size  caused  a  general  breakdown  of  the  old 
private  dock  companies,  and  some  kind  of  a  port  reorganization  problem 
faced  most  of  the  British  cities  in  the  decade   1850-1860. 

The  problem  was  a. much  more  difficult  one  than  it  would  have  been  in 
.\merica,  because  of  the  physical  peculiarities  of  the  British  streams  and 
harbors.  The  coast  of  that  country  is  swept  by  a  tide  of  such  great  height 
that,  while  a  modern  vessel  can  enter  almost  any  river  at  high  tide,  at  low 
tide,  owing  to  the  great  fall  of  water,  the  vessel  lies  in  the  harbor  subject  to 
strains  which  modern  shipping  cannot  resist.  Some  artificial  body  of  water 
must,  therefore,  be  prepared  in  which  the  vessel  can  lie  in  safety  at  low  tide. 
This  difficulty  was  met  by  the  building  of  so-called  wet  docks,  which  are 
almost  invariable  excavations  in  the  lowlands  along  the  bank  of  the  river, 
which  excavations  must  be  walled  up  and  can  be  entered  only  through  lock 
gates  such  as  are  used  in  ship  canals. 

It  is  interesting  to  note  that  one  British  port  did  not  demand  reorganiza- 
tion in  the  decade  1850-60.  This  was  London,  where  the  old  private  com- 
panies were  able  to  improve  their  facilities  and  meet  the  demands  which  had 
wrecked  scores  of  similar  companies  in  other  British  ports.  The  greater 
strength  of  the  London  companies  was  due  to  the  fact  that  the  vast  com- 
merce of  London  had  enabled  them  to  become  strong,  and  the  very  high 
value  of  the  commerce  of  the  city,  which  was  the  European  distributing 
point  for  the  valuable  commerce  of  the  East,  enabled  the  companies  to  lay 
heavier  dues  than  could  be  borne  by  the  bulkier  and  less  valuable  commerce 
of  other  cities.  But  the  end  of  the  London  private  companies  is  near  at 
hand.  The  commercial  interests  of  the  city  and  of  the  empire  are  united 
in  the  demand  for  more  facilities :  the  existing  authorities  are  alike  united 
in  their  inability  to  meet  them.  Something  must  be  done  to  improve  the 
port  of  the  greatest  city  in  the  world,  which  is  now  being  sapped  because  of 
her  inadequate,  facilities  for  the  receipt  of  ships. 

The  present  deadlock  furnishes  an  interesting  example  of  the  way  the 
British  have  in  the  past  managed  their  harbors.  There  are  no  less  than 
four  private  interests  doing  work  which,  in  Germany,  and  to  a  considerable 
extent  in  America,  would  be  done  by  an  arm  of  government. 

(i)  The  first  of  these  is  Trinity  Hguse,  an  old  corporation  grown  from 
a  mediaeval  guild  of  pilots,  located  on  the  Lower  Thames.  It  has  gradually 
changed  its  character  through  the  centuries,  and  now  has.  in  addition  to  the 
authority  over  pilots,  the  work  of  lighting  and  buoying  the  channel  of  the 
Thames,  and  is  also  the  lighthouse  authority  for  the  coast  of  England, 
Wales    and    Gibraltar.      While    it    has    absolute   power    over    the    pilots    and 

(387) 


i44  The  Annals  of  the  American  Academy 

lights  of  the  river  that  reach  to  London,  it  is  a  close  corporation  in  which 
the  senior  members,  the  "Elder  Brethren,"  fill  their  own  vacancies  from  the 
junior  or  "Younger  Brethren,"  and  also  elect  outsiders  to  till  this  lower 
branch  of  their  membership. 

(2)  There  is  considerable  danger  of  confusion  and  trouble  because  of 
the  lack  of  co-operation  between  the  activities  of  the  Trinity  House  and  the 
Thames  Conservancy  Board,  which  is  the  channel  deepening  body  of  the 
River  Thames.  This  board  is  the  creation  of  Parliament  and  represents  the 
one  important  step  taken  in  the  so"s  (1857)  to  enable  London  to  meet  the 
increased  demands  of  free  trade  commerce.  This  body  has  charge  of 
deepening  the  channel,  regulates  vessels  within  the  port,  licenses  docks  and 
piers,  and  makes  any  needed  by-laws  for  the  control  of  shipping  in  the 
harbor.  j 

Its  revenues  come  from  the  dues  paid  by  vessels  passing  up  and  down 
the  Thames,  but  its  funds  are  entirely  inadequate  for  the  great  improvements 
that  are  needed  in  the  harbor. 

(3)  If  the  channel  could  be  deepened  so  that  the  greatest  ship  could  come 
to  London,  there  is  no  dock  in  which  she  could  lie.  The  old  companies 
which  prospered  from  1800  to  1880  have  done  their  best  and  can  do  no  more. 
Under  the  regime  of  competition  they  had,  in  the  latter  part  of  the  last  century, 
severe  rate  wars  and  also  made  great  financial  sacrifices  to  build  new  and 
improved  docks.  Through  consolidations  there  came  to  be  but  two  strong 
companies  in  1880.  In  1888  these  two  companies  came  to  a  working  under- 
standing and  stopped  competing  with  each  other ;  they  were  finally  consoli- 
dated into  one  management  in  1900,  but  all  to  no  avail.  Their  dividends  have 
ceased,  their  financial  condition  is  hopeless  and  Parliament  will  not  permit 
them  to  charge  heavier  dues,  and  if  they  could  the  commerce  would  probably 
not  stand  it.  If  they  could  get  the  greatest  ship  in  the  world  to  reach  their 
gates,  the  dock  companies  could  not  make  a  berth  for  it,  and  they  are 
inadequate  for  those  that  now  enter.  There  is  great  confusion  in  the  delivery 
of  the  goods.  Two  and  even  three  cargoes  sometimes  lie  upon  the  quays 
and  wait  for  the  lighters  to  come  carry  them  away. 

(4)  The  fourth  individual  factor  in  London  is  the  Watermen's  Com- 
pany, which  has  the  control  over  all  the  boats  in  the  harbor.  Nearly  all  the 
goods  coming  into  the  port  are  handled  at  least  once  in  a  lighter.  These, 
with  the  riv^er  boats,  make  a  total  of  over  12,000  craft,  and  these  craft  can 
be  run  only  by  a  man  licensed  by  the  Watermen's  Company.  This  company 
is  the  present  form  of  a  sixteenth  century  guild  of  Queen  Elizabeth's  time 
that  then  had  a  monopoly  of  running  rowboats  within  the  city  limits  on  the 
River  Thames.  It  was  necessary  for  such  a  man  to  be  a  good  oarsman,  and 
he  therefore  became  a  member  of  the  guild  only  through  membership,  and 
to  this  day  the  man  who  runs  a  scow  or  steamer  on  the  River  Thames  must 
have  passed  his  apprenticeship  in  the  Watermen's  Company. 

Of  these  four  individual  powers  the  three  whose  functions  require  the 
spending  of  money  are  bankrupt,  and  the  fourth  has  arbitrary  power  which 
is  rather  easy  in  the  present  day  of  trade  unionism  to  abuse.  A  royal  com- 
mission  has   investigated  this   matter   for   two   years,   and  has    recommended 


Port  Adniiiiisfration  and  Harbor  Facilities  I45 

to  Parliament  the  creation  of  a  pviblic  trust.  This  characteristic  of  British 
institutions  would  combine  the  functions  of  all  bodies  now  having  any 
authority  over  the  port  of  London.  It  would  eliminate  private  profit  and, 
through  the  disappearance  of  the  hope  of  dividends,  it  could  lessen  its  ex- 
penses by  borrowing  money  upon  the  security  of  the  port.  The  proposed 
composition  of  the  board  shows  the  compromise  element  in  British  institu- 
tions.    The  members  are  to  be  appointed  as  follows: 

Members. 

(a)  By  the  London  County  Council   n 

(b)  By  the  City  Corporation  3 

(c)  By  the  Admiralty  

(d)  By  the  Board  of  Trade   

(e)  By  the  Trinity  House   

(f)  By  the  Kent  County  Council   

(g)  By  the  Essex  County  Council    

(h)   By  the  London  Chamber  of  Commerce   2 

(i)   By  the  Governors  of  the  Bank  luigland,  from  among  per- 
sons belonging  to  the  mercantile  community  of  London.       5 

The  elected  members  should  be  elected  by  different  groups  of  voters, 
viz.: 

Members. 

(;■)  By  the  oversea  (or  ocean)   trading  shipowners : 5 

(A-)   By  the  short  sea-trading  shipowners   2 

(/)   By  the  wharfingers  and  owners  of   private   warehouses  on 

the   river    •  -•  •  •  3 

(«i)   By  owners  of  lighters,  barges  and  river  craft,  including  river 

passenger    steamers    ^ 

(n)  By  railway  companies  connecting  with  the  docks  2 

"The  electing  persons,  firms  or  companies  should  be  given  a  number  of 
votes,  varying  according  to  the  amounts  paid  in  dues  upon  goods,  or  upon 
shipping,  as  the  case  may  be." 

This  is  much  like  the  manner  of  conducting  the  harbors  of  Liverpool 
and  Glasgow,  where  such  public  trusts  have  done  a  great  work  and  given 
much  satisfaction.  This  is  partly  due.  doubtless,  to  the  character  of  the  men 
who  sit  upon  the  boards  of  control.  It  is  an  honor  to  be  elected ;  they  serve 
without  pay,  as  do  the  trustees  of  American  universities.  Unfortunately 
for  London,  the  interests  within  the  port  are  not  all  satisfied  with  the  proposed 
public  trust  arrangement  and  the  bill  has  been  defeated.  Parliament  and 
London  still  waits  and  wrestles  with  her  problem  which  must  be  solved. 


r.^sqY 


146  The  Annals  of  the  American  Academy 

MANCHESTER,    ENGLAND 

By    Ernest    Smith    Bkadkokd,    University    of    Pennsylvania 

Manchester  presents  the  case  of  the  operation  of  a  ship  canal  as  well 
as   docks. 

As  will  be  recalled,  the  city  lies  inland,  thirty-five  miles  from  Liverpool, 
on  a  branch  of  the  Mersey  River,  the  center  of  "the  greatest  cotton  manu- 
facturing area  in  the  world."  The  population  of  the  city  itself  in  1905  was 
631,185,  but  it  serves  a  vastly  larger  section  as  collecting  and  distributing 
point.  The  agitation  to  connect  the  city  by  canal  with  deep  water,  and  thus 
free  the  city  from  the  necessity  of  conducting  all  its  export  and  import  trade 
through  Liverpool,  where  dock  charges  were  increased  by  the  cost  of  railway 
haulage  to  Manchester,  began  in  1882.  A  company  was  formed  to  carry  out 
the  enterprise ;  but  after  spending  nearly  all  of  its  capital,  $50,000,000,  found 
itself  unable  to  proceed  further.  The  City  of  Manchester  came  forward 
with  a  loan  of  $25,000,000,  and  the  work  was  finished,  the  canal  and  docks 
being  opened  for  traffic  January  i,  1894.  The  canal  is  thirty-five  miles  long 
and  has  four  locks,  as  the  Manchester  wharves  are  sixty  feet  above  sea 
level.  Seagoing  vessels  drawing  twenty-six  feet  can  dock  in  the  heart  of 
the  city,  and  the  depth  is  being  increased  to  twenty-eight  feet. 

In  return  for  the  loan  the  city  obtained  control  of  the  Manchester  Ship 
Canal  Company,  electing  eleven  out  of  twenty-one  directors,  so  that, 
although  it  is  a  mixed  municipal  and  company  enterprise  as  regards  invest- 
ment, its  management  is  municipal.  The  taxpayers  were  assessed  in  1897-8, 
to  maintain  the  canal,  a  rate  of  i  shilling  i  8-10  pence  in  the  pound,  a  rate 
reduced  in  1906,  with  tlie  increasing  business  of  the  canal,  to  4^  pence  in 
the   pound. 

Below  the  board  of  directors,  who  have  general  control  of  the  works, 
with  their  secretary  and  accountant,  auditors,  and  firm  of  solicitors  and 
bankers,  the  administration  is  divided  between  the  ship  canal  department 
proper  and  the  Bridgewater  department,  which  operates  the  old  Bridgewater 
Canal. 

At  the  head  of  the  ship  canal  department  is  a  general  superintendent, 
associated  with  whom  is  a  chief  traffic  superintendent,  an  indoor  superin- 
tendent and  a  railway  traffic  indoor  superintendent.  These  are  in  the  main 
dock  office.  For  the  docks  there  are  a  dock  traffic  superintendent,  a  railway 
superintendent,  stores  superintendent  and  police  superintendent.  There  are, 
besides,  a  grain  elevator  superintendent,  a  coal  superintendent  (at  Partington), 
a  dockmaster  and  canal  superintendent,  and  three  district  canal  superinten- 
dents at  Eastham,  Latchford  and  Irlam.  There  are  also  chief  and  consulting 
engineers  and  assistants,  land  agents,  an  advertising  agent,  and  representa- 
tives in  Liverpool,  London,  Toronto  and  New  York. 

The  Bridgewater  department  has  a  somewhat  similar,  though  less  ex- 
tended, organization. 

Under  the  control  of  tJiese  authorities  are  six  miles  of  docks,  with  large 
warehouses;  forty  miles  of  railroad  on  the  wharves  and  sixty-five  more 
along  the  canal  at  various  points — T05  miles  in  all  (1903)   worked  by  the  ship 


Port  ildministration  and  Harbor  Facilities 


147 


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148  The  AiDials  of  the  American  Academy 

canal  company,  with  freight  cars  and  locomotives,  tugs  to  assist  steamers  up 
and  down  the  canal,  locks  and  sluices,  swing  bridges  and  ferries,  dredges  and 
barges.  Besides  the  cattle  pens  provided  by  the  canal  company  for  the  coast- 
wise cattle  trade,  the  City  of  Manchester  directly  has  erected  other  needed 
cattle  yards  at  the  wharves,  and  owns  a  cold  storage  plant  one  and  a  half 
miles  from  the  docks.  The  docks  are  lighted  by  electricity,  goods  being  dis- 
charged and  loaded  frequently  at  night.  The  pilotage  service  is  in  the  hands 
of  a  pilotage  board,  which  examines  and  licenses  pilots,  though  pilotage  on  the 
canal  is  not  compulsory.  The  board  consists  of  six  members,  elected  by  the 
canal  company,  and  three  pilots.  There  are  about  1,200  permanent  employees 
in  the  ship  canal  department,  not  including  laborers  by  the  day  or  by  piece- 
work, and  in  the  Bridgewater  department,  2,500 — 3,700  in  all. 

At  the  beginning  sweeping  reductions  in  rates,  both  ways,  were  made  by 
the  ship  canal,  and  competition  forced  the  railways  between  Manchester  and 
Liverpool  to  reduce  their  rates,  also.  At  the  same  time,  traffic  increased 
both  on  canal  and  railways,  consequent  on  the  larger  volume  of  business  due 
to  lower  freights.  The  amount  of  sea-borne  traffic  passing  through  the 
locks  in  1899  was  2,788,108  freight  tons;  in  1902,  3,137,348  tons;  in  1904, 
3,917,528  tons;  while  in  the  first  half  only  of  1906,  2,112,000  tons,  but  the 
increased  cost  of  handling  was  small  in  comparison.  The  expenses  fell  from 
91  per  cent  of  the  receipts  in  1897  to  60J/2  per  cent  in  1902.  The  financial 
results,  so  disappointing  in  the  earlier  years,  have  been  much  better  since 
1900.  Along  with  larger  cotton  imports  and  exports  have  gone  other  items; 
wheat  imports  have  increased  from  4,356,000  bushels  in  1901  to  8,741,600 
bushels  in  1904,  "all  of  which  trade,"  says  United  States  Consul  Hamm,  of 
Hull,  "has  been  captured  from  other  ports,  notably  Hull  and  Liverpool." 
The  canal  has  more  than  paid  operating  expenses  since  1896;  the  interest 
on  the  city's  stock,  £5,000,000,  has  been  met  by  taxes,  the  continual  decrease 
of  which  has  already  been  referred  to,  and  which  are  likely  to  be  soon 
entirely  done  away  with,  if  the  increase  in  receipts  continues  to  exceed  the 
increase  in  expenses.  The  private  stockholders  have  had  little  return  on 
their  investment,  however.  The  arrears  of  interest  owing  by  the  canal  com- 
pany January  i,  1905,  amounted  to  nearly  $9,000,000,  of  which  $4,450,000  has 
been  cancelled,  and  for  the  balance  3i>2  per  cent  preferred  stock  issued.  From 
the  standpoint  of  the  shareholders  in  the  company,  the  enterprise  has  not 
yet  succeeded ;  from  that  of  shipping  interests  and  the  general  economic 
welfare  of  the  city,  it  has  been  an  undoubted  success.  Opinion  as  to  the 
result  of  Manchester's  experiment  depends  on  the  answer  to  the  question 
whether  city  port  facilities  should  be  administered  as  a  profit-making  industry, 
such  as  city  water  works  and  lighting  plants,  or  as  the  non-revenue  pro- 
ducing factors,  such  as  parks,  sewers,  streets  and  bridges. 


T.-^osT 


Port  Administration  and  Harbor  Facilities  I4Q 

HAMBURG  AND  BREMEN,  GERMANY 
By  S.  S.  HuEBNER,  Ph.D.,  University  of  Pennsylvania 
Although  the  Imperial  Government  of  Germany  exercises  a  large  measure 
of  control  over  the  merchant  marine  and  over  navigation  on  interstate  water- 
ways, it  possesses,  broadly  speaking,  no  authority  to  construct  or  manage 
harbors,  this  function  being  intrusted  solely  to  the  care  of  the  several  states. 
In  Hamburg  and  Bremen  the  harbors  are  operated  as  state  property, 
the  work  of  construction  being  placed  in  the  hands  of  a  special  department 
for  this  purpose  and  the  general  supervision  and  care  of  the  harbor  being 
exercised  in  Hamburg  by  a  Department  of  Trade  and  Commerce  and  in 
Bremen  by  a  Department  for  Harbors  and  Railways.  Over  these  departments 
stands  the  Senate  of  the  state,  which  exercises  the  ultimate  executive  power. 
All  expenditures  for  purposes  of  construction  and  operation  are  borne  by 
the  two  city-republics  themselves,  and  are  defrayed  from  general  taxation. 
The  receipts,  on  the  other  hand,  are  merged  with  the  general  income  of  the 
state,  there  being  no  necessary  connection  between  the  expenditures  for 
harbors  and  the  receipts  derived  therefrom. 

In  the  case  of  each  of  these  world-ports,  the  state  either  owns  or  controls 
the  larger  portion  of  the  warehouse  system.  Bremen,  for  example,  in  return 
for  a  stipulated  percentage  of  the  net  earnings,  furnishes  the  ground  and 
constructs  the  buildings,  but  does  not  interfere  with  the  management  of 
business  activity  of  the  system,  except  as  regards  the  regulation  of  the  ware- 
house dues.  Hamburg,  on  the  other  hand,  does  not  in  the  main  assume  the 
duty  of  constructing  the  buildings,  but  merely  leases  the  ground  for  a  certain 
percentage  of  the  net  earnings  to  a  Free  Harbor  Warehouse  Association. 
This  association,  while  obliged  to  construct  all  necessary  buildings  and  bear 
all  financial  losses,  is,  nevertheless,  subject  to  a  large  measure  of  state  control. 
To  the  Senate  belongs  the  right  of  regulating  the  warehouse  dues  and  of 
determining  the  nature  of  the  buildings  to  be  constructed.  Likewise  all 
acts  which  involve  an  increase  in  the  capital  stock  or  indebtedness  of  the 
association,  or  a  change  in  its  rules  must  be  sanctioned  by  the  Senate. 
Finally,  the  state  is  represented  in  the  directorate  of  the  association  and 
possesses  the  power  to  suspend  any  act  of  that  body  until  the  Senate  may 
have  passed  on  its  expediency. 

What  has  been  said  concerning  Hamburg  and  Bremen  holds  in  a  general 
way  for  the  other  German  harbors.  As  a  rule,  their  construction  and  man- 
agement are  intrusted  to  the  care  of  local  boards  or  commissions  subject  to 
the  general  supervision  of  the  state;  in  Lubeck  to  a  Board  of  Public  Works 
and  the  police  authority,  in  Rostock  to  a  Board  of  Public  Works,  and  in 
Wismar  to  a  Harbor  Department.  In  Prussia  the  management  and  improve- 
ment of  harbors  is  conducted  either  under  the  supervision  of  the  Board  of 
Public  Works  for  each  respective  city  or  by  permanent  commissions,  which 
are  local  in  character,  but  which  must  receive  the  sanction  of  the  state 
as  regards  harbor  improvements  and  other  important  changes.  To  be 
specific,  all  harbor  matters  in  Stettin  are  managed  by  a  Board  of  Public 
Works;  in  Kiel,  b  a  Harbor  Commission;  in  Flensburg  by  a  Harbor  and 
Bfidge  Coi_3iissioi    in  Swinemuende,  by  a  Royal  Commission  of  Navigation 

(393) 


150  The  Annals  of  the  A}>ierica)i  Academy 

officiating  as  a  local  authority ;  and  in  Koenigsberg  by  a  Royal  Harbor  Police 
Commission.  The  operating  expenses,  as  a  rule,  are  borne  by  the  local 
communities  and  are  defrayed  from  the  harbor  receipts. 

Improvement  of  Harbor  Channels. — During  the  last  twenty-five  years 
nearly  all  the  leading  seaports  of  Northwest  Europe  have  exerted  themselves 
to  the  utmost  in  an  endeavor  to  adapt  their  facilities  to  the  growing  condi- 
tions of  international  trade.  Indeed,  practically  all  the  leading  ports,  with 
the  exception  of  London,  have  remained  close  rivals  in  this  respect  during  the 
whole  of  this  period.  This  strenuous  competition  may  be  attributed,  first, 
to  the  rapidly  increasing  size  and  draught  of  ocean  steamers,  and,  secondly, 
to  the  struggle  between  these  ports  for  the  Eastern  trade  and  the  conse- 
quent desire  to  accommodate  ships  of  the  Suez  standard.  The  less  anyone 
of  these  harbors  is  dependent  upon  the  influence  of  tide,  the  greater  is  the 
advantage  of  that  port.  Hence  any  effort  on  the  part  of  one  harbor  to 
deepen  its  channel  or  to  improve  its  facilities  for  landing,  loading  and 
unloading,  has  resulted  in  a  corresponding  effort  on  the  part  of  the  other 
ports. 

As  regards  the  channel  leading  from  the  sea  to  the  landing  place,  the 
German  ports  cannot  be  said  to  have  been  favored  by  nature.  Whatever 
position  these  harbors  now  hold  has  been  the  result  of  vast  labor  and 
expenditure  and  the  improvements  have  by  no  means  been  completed.  Ham- 
burg, until  about  1850,  possessed  a  channel  measuring  only  from  4.0  to  4.3 
meters  in  depth  at  high  tide.  At  an  enormous  expenditure  this  depth  has 
been  increased  to  8.3  meters,  while  arrangements  have  been  made  for  a  further 
increase  of  1.7  meters.  Bremen  has  also  labored  under  unusual  difficulties 
since  its  original  channel  measured  only  2.5  meters  in  depth.  After  an  outlay 
of  some  50,000,000  marks,  however,  this  city  has  secured  a  channel  which 
can  accommodate  ocean-going  vessels  with  a  draught  of  six  meters. 

Improvement  of  Harbor  Facilities. — The  rivalry  between  the  leading 
ports  of  Europe  concerning  the  improvement  of  their  channels  also  exists  in 
the  provision  of  basins,  wharves,  warehouses  and  other  necessary  equipment. 
Enormous  sums  have  been  paid  by  most  of  the  ports  in  rendering  easier  and 
swifter  the  process  of  loading  and  unloading.  Particularly  is  this  true  of 
Hamburg,  nearly  all  of  whose  harbor  facilities  have  been  constructed  during 
the  last  twenty  years.  E^■en  as  late  as  1866  all  sea-going  vessels  were  obliged 
to  anchor  in  the  open  stream,  and  the  whole  process  of  loading  and  unloading 
had  to  be  conducted  by  means  of  lighters.  About  this  time,  Hamburg  began 
the  construction  of  a  series  of  improvements  with  the  result  that  to-day 
her  system  of  docks  and  piers  is  reputed  to  be  the  best  in  existence,  and  her 
ship  lines,  according  to  Dr.  Wiedenfeld.  enjoy  an  ease  of  communication 
with  the  shore  far  superior  to  that  furnished  by  the  English  ports. 

Besides  possessing  probably  the  best  system  of  warehouses  in  the  world, 
Hamburg  has  made  admirable  connection  with  the  railways  and  interior 
waterways.  Separate  harbor  basins  have  been  constructed  for  the  numerous 
canal  and  river  boats  where  they  may  remain  to  await  the  arrival  of  steamers. 
The  steamer  basins  have  been  constructed  with  a  view  to  making  a  swift 
transfer  of  freight  to  and  from  vessels  the  prime  consideration,   any  gain 

(394) 


Port  Adniuiistration  and  Harbor  Facilities  151 

in  this  respect  meaning  of  course  a  corresponding  gain  in  the  length  of 
available  piers.  The  wharves,  besides  being  exceedingly  spacious  and  built 
of  durable  material,  are  amply  supplied  with  hydraulic  machinery.  At  the 
present  time  the  basins  cover  an  area  of  336.4  acres,  while  the  total  length 
of  quays  approximates  8.5  miles.  Extensions  are  now  being  made,  however, 
which  will  increase  the  area  of  the  basins  to  612.56  acres  and  the  length  of 
the  quays  to  twelve  miles.  When  this  project  is  completed  Hamburg  will  have 
spent  some  180,000,000  marks  since  1880  for  its  harbor  facilities — of  which 
sum  the  Imperial  Government  contributed  40,000,000  marks  at  the  time  of 
Hamburg's  accession  to  the  Customs  Union — and  this  enormous  outlay  does 
not  include  the  large  sums  expended  in  deepening  and  otherwise  improving 
the  channel,  or  in  constructing  the  excellent  system  of  warehouses.  It  only 
requires  the  further  deepening  of  the  channel,  for  which  arrangements  have 
already  been  made,  and  the  completion  of  the  exten.sions  referred  to  above. 
to  make  Hamburg's  harbor  satisfy  the  highest  requirements  of  modern 
efficiency. 

What  has  been  said  of  Hamburg  is  true  of  Bremen  and  the  Dutch- 
Belgian  ports,  though  on  a  smaller  scale.  In  the  provision  of  appliances  for 
loading  and  unloading  freight  these  harbors  are  practically  on  a  par,  and 
meet  the  latest  requirements.  In  all,  too,  the  construction  of  the  harbor 
was  so  arranged  that  the  new  warehouses  would  be  situated  at  once  near 
the  water  and  in  the  immediate  vicinity  of  the  large  mercantile  offices. 

Limiting  our  discussion  to  the  sums  expended,  it  appears  that  subsequent 
to  1885  Bremen  was  paid  in  round  numbers  93,800,000  marks  for  its  harbor 
facilities,  exclusive  of  the  50,000,000  marks  devoted  to  the  deepening  of  the 
channel.  Of  this  sum  the  Imperial  Government  contributed  12,000,000  marks 
when  Bremen  joined  the  Customs  Union  in  1888  and  1,800,000  marks  towards 
the  construction  of  the  Kaiserdock  at  Bremerhafen.  Large  sums  have  also 
been  expended  in  Stettin,  Danzig,  Kiel,  Emden  and  other  smaller  ports  on 
the  North  Sea.  Stettin,  after  an  outlay  of  some  40,000,000  marks,  has  secured 
a  harbor  which  is  not  only  beginning  to  share  in  the  American  trade,  but 
which,  at  the  expense  of  Copenhagen  and  Gothenburg,  is  rapidly  acquiring 
more  and  more  of  the  Russian  and  Scandinavian  trade.  Altogether,  it  has 
been  estimated  that  the  several  governments  of  Germany  have  devoted  about 
$125,000,000  since  1888  towards  the  improvement  of  harbors,  and  that  of  this 
sum  about  six-tenths  has  been  used  for  the  channel  and  other  facilities  of 
Hamburg  alone.  This  single  port,  it  has  been  said,  "has  spent  more  money 
than  any  other  two  harbors  in  the  world  together  during  the  last  score  of 
years  to  perfect  its  technical  facilities." 


*  BARCELONA,   SPAIN 

By   Chester   Lloyd   Jones,   LIniversity   of    Pennsylvania 

The   rapid   rise  of   Barcelona  to  conunercial   and   industrial   importance 

is  the   pride  of  every   Spaniard   who  hopes    for   a   brilliant   future   for   his 

covmtry.     Nor    is   the    satisfaction    in    the   growth    of    the    city    unsupported 

by   facts   for   few,   if   any,  of   the   cities   of   south   Europe   can    show   such   a 

(395) 


152  The  Afinals  of  the  American  Academy 

remarkable  rejuvenation  as  has  taken  place  in  the  Spanish  metropolis  in 
the  latter  half  of  the  nineteenth  century. 

The  transformation  of  Barcelona  from  a  fairly  prosperous  provincial 
capital  to  the  industrial  center  of  all  Spain  dates  from  about  1S68  when 
it  ceased  to  be  a  walled  town  and  started  on  its  present  career  of  indus- 
trial development.  Since  that  time  the  town  has  had  a  marvelous  growth; 
it  has  doubled  in  area  and  its  population  has  increased  in  hardly  less  a 
degree.  The  new  city  with  its  broad  avenues  and  busy  inhabitants  furnishes 
a  marked  contrast  to  the  contracted  and  idle  towns  of  the  south.  The 
Catalan  population,  indeed,  is  remarkable  for  thrift,  patience  and  industry, 
and  well  deserves  the  name  often  given  them — the  Germans  of  Spain. 

Less  than  a  decade  passed  after  the  beginning  of  the  revival  of  Barcelona 
before  the  increase  of  the  sea-going  trade  brought  into  notice  the  necessity 
of  improved  harbor  facilities.  The  harbor  of  Barcelona — if  the  small  inden- 
tation of  the  coast  line  could  be  called  such — was  shallow  and  exposed  to  hard 
winds  from  the  east  and  southeast  which  made  the  handling  of  freight  diffi- 
cult at  all  times  and  especially  during  the  rainy  season.  The  plan  of  the 
harbor  as  then  in  use  was  the  same  as  when  originally  laid  out  in  1474,  and  it 
was  therefore  entirely  unsuited  to  accommodate  modern  shipping.  The  move- 
ment for  improving  the  conditions  culminated  in  1880  in  a  plan  for  a  harbor 
on  truly  modern  lines.  Too  much  credit  can  hardly  be  given  to  those  who 
undertook  the  project  for  it  meant  practically  the  creation  of  an  entirely 
new  harbor  in  shallow  water  on  a  sandy  coast  that  ofifered  almost  no  natural 
advantages. 

As  planned  in  1880  and  since  improved  the  harbor  consists  of  two  basins. 
Two  long  moles  enclose  it  on  the  east  and  south,  the  coastline  forming  an 
irregular  third  side  to  the  triangle.  The  inner  and  northern  basin  lying 
nearest  to  the  heart  of  the  city  is  even  now  unable  to  accommodate  large 
sea-going  vessels  as  its  depth  is  only  seven  meters  at  the  deepest  point  while 
the  average  is  between  five  and  six.  Between  the  inner  and  the  outer  basins 
lie  three  moles  two  of  which  serve  as  docks,  while  upon  the  third  one,  which 
is  detached,  the  office  of  the  customs  house  is  situated.  By  this  arrangement 
the  customs  offices  are  almost  in  the  center  of  the  harbor.  In  the  outer 
basin  a  floating  dry  dock  is  located  which  can  accommodate  medium  sized 
vessels.  In  both  basins  it  is  planned  to  have  a  well  developed  comb  of  docks, 
those  in  the  inner  basin  being  already  completed.  Along  the  docks  of  the 
inner  harbor  spacious  warehouses  have  now  replaced  the  inadequate  sheds 
which  were  formerly  the  only  protection  for  goods  needing  storage.  Nearly 
1,500,000  square  feet  of  storage  space  is  now  provided.  In  this  built-up  portion 
of  the  harbor  there  is  a  length  of  docks  of  over  13,000  feet  with  a  width 
varying  from  100  to  400  feet.  The  machinery  for  unloading  has  recently 
been  much  improved  and  is  at  present  adequate  for  the  needs  of  the  port. 
The  equipment  includes,  besides  the  numerous  small  portable  cranes,  seven- 
teen hydraulic  cranes  of  twenty-five  tons  capacity,  two  floating  cranes  of 
twenty-five  tons  and  one  of  eighty  tons.  An  electric  grain  elevator  has 
also  recently  been  installed.  But  little  progress  has  been  made  in  building 
up  the  comb-docks   in  the   outer   basin   and   consequently  the   commerce   in 

(396) 


Port  Administration  and  Harbor  Facilities  153 

vessels  of  deeper  draft  is  still  hampered  by  lack  of  space  necessitating  delays 
in  unloading  upon  the  shore  wharves. 

The  depth  of  the  water  in  the  outer  basin  varies  from  seven  to  fifteen 
meters.  Systematic  dredging  has  improved  the  center  of  the  area  to  a  depth 
of  ten  meters,  but  the  lack  of  sufficient  water  continues  to  be  one  of  the 
greatest  hindrances  to  the  satisfactory  management  of  the  deep-sea  traffic. 

The  rapid  development  of  the  city  has  already  given  indication  that  the 
harbor,  even  when  deepened  satisfactorily,  will  still  remain  inadequate,  and 
a  new  breakwater  is  being  extended  toward  the  south  which  will  enlarge 
the  water  area  of  the  harbor  to  almost  twice  its  present  size.  Large  blocks 
of  concrete  weighing  as  much  as  eighty  tons  are  sunk  to  form  the  foundation 
for  this  mole.  The  extension  is  rendered  especially  desirable  on  account  of 
the  heavy  seas  that  make  waiting  outside  the  harbor  dangerous  in  stormy 
weather.  Increased  protection  to  the  shipping  during  adverse  weather  condi- 
tions is  in  fact  an  absolute  necessity  if  the  city  is  to  continue  its  present  com- 
mercial development. 

One  of  the  greatest  handicaps  of  the  port  of  Barcelona  in  the  past  has 
been  the  inadequacy  of  the  coal  supply.  In  spite  of  efforts  by  the  Cortez  to 
encourage  the  production  of  Spanish  coal,  no  satisfactory  development  of 
this  branch  of  the  country's  resources  has  occurred,  and  the  chief  dependence 
for  sea  vessels  is  now,  as  formerly,  upon  English  mines.  Up  to  1902  the 
Spanish  duties  on  imported  coal  were  levied  on  all  that  came  into  the  country 
irrespective  of  its  destination.  In  that  year,  however,  an  Englisli  company, 
backed  by  the  commercial  interests  of  Barcelona,  secured  a  special  concession 
from  the  central  government  allowing  them  to  construct  a  floating  coal  hulk 
in  the  outer  harbor,  all  coals  shipped  to  which  were  to  be  used  in  bunkering 
sea-going  vessels  and  to  be  free  from  the  customary  duties.  This  has  so  re- 
duced the  cost  of  coal  in  the  port  that  a  decided  increase  has  taken  place  in 
the  number  of  ships  bunkering  here. 

At  present  two  floating  coal  docks  are  maintained  capable  of  discharging 
coal  at  the  rate  of  from  500  to  700  tons  daily.  On  account  of  the  extra 
charges  for  the  higher  speeds,  however,  the  usual  rate  is  from  300  to  400  tons 
per  day  of  ten  hours.  The  company  has  recently  begun  the  installation  of 
electric  discharging  machinery  with  a  capacity  of  from  800  to  900  tons 
per  day. 

The  depth  of  water  at  the  usual  discharging  berth  is  twenty-three  feet, 
although  steamers  of  twenty-seven  feet  draft  can  be  accommodated.  The 
increased  demand  for  coal  due  to  these  improved  bunkering  facilities,  has 
raised  the  consumption  of  the  port  to  over  700.000  tons  per  year  of  which 
550,000  tons  are  from  England.  So  successful  has  the  project  been  indeed, 
that  the  same  company  is  now  negotiating  for  the  extension  of  its  privileges 
to  the  ports  of  Southern  Spain,  especially  Valencia. 

The  control  of  the  port  and  port  charges  rests  in  two  authorities — one 
local  and  one  central,  though  a  single  set  of  officers  in  most  cases  supplies 
both  services.  The  central  government,  in  pursuance  of  a  comprehensive 
plan  for  the  maintenance  and  improvement  of  all  Spanish  harbors,  makes 
what    is   called    a   "transport    tax"'    of   2.30   pesetas    (about   thirty-six   cents) 

(397) 


154  The  Annals  of  the  American  Academy 

per  ton,  and  a  local  "port-works"  tax  of  an  equal  amount  is  levied  for  and 
administered  from  Barcelona.  Independence  of  action  in  the  local  authori- 
ties is,  however,  apparent  rather  than  real,  as  all  the  plans  for  extensions  or 
for  special  concessions  are  subject  to  review  at  Madrid. 

On  the  whole,  this  control  by  the  central  authorities  seems  to  have 
been  exercised  with  intelligence  and  with  a  realization  of  the  local  needs. 
The  commerce  has  steadily  grown,  and  though  the  harbor  is  not  yet 
equal  to  the  demands  of  the  industrial  interests  of  the  city,  still  it  is  a  credit 
to  the  community  it  serves.  The  extent  to  which  the  port  of  Barcelona  has 
entered  into  the  commerce  of  the  world,  does  not,  of  course,  bear  comparison 
with  the  thriving  centers  farther  to  the  north,  but  when  compared  with  the 
decadence  of  a  generation  ago  the  showing  is  satisfactory  indeed. 

There  are  at  present  the  following  services  :  Two  steamers  a  month  from 
Barcelona  to  New  York  regular  lines  going  to  Alexandria,  Egypt  and  the 
Mediterranean  ports,  and  sixteen  Spanish  shipping  companies  with  regular 
saihngs  from  Barcelona.  Besides  this  the  city  is  a  port  of  call  for  five 
Italian,  four  French,  three  British,  two  Austrian,  two  German  lines  and  one 
each  of  Belgian,  Dutch  and  Norwegian  nationality. 

This  is  a  showing  unequaled  by  any  other  port  of  the  Kingdom,  and 
remarkable  when  the  conditions  of  a  generation  ago  are  called  to  mind.  The 
prosperity  of  Barcelona  and  the  condition  of  its  ports  are  tributes  to  the 
industry  and  genius  of  Catalonia,  and  the  most  reassuring  signs  of  the  devel- 
opment desired  by  "Young  Spain"  for  the  country  as  a  whole. 


ANTWERP,   BELGIUM 

By  Henry  R.\lph  Ringe,  Philadelphia 

The  port  of  Antwerp,  located  sixty  miles  from  the  mouth  of  the  River 
Scheldt,  is  situated  in  the  center  of  a  rich  and  thickly  populated  manufac- 
turing district,  and  is  a  most  convenient  exit  for  the  greater  part  of  the  trade 
of  Europe,  since  it  takes  the  trade  of  Belgium,  Northeastern  France  and 
part  of  Germany. 

The  trade  is  continually  assuming  larger  proportions,  an  evidence  of 
which  is  the  fact  that  in  1902  Antwerp  was  the  headquarters  of  sixty  ship- 
ping companies.  The  growth  in  the  amount  of  shipping  entered  at  the  port 
is  shown  by  the  following  table : 

Dace.  No.  of  ships.  Tonnage 

1880  4,626  3,117,754 

1890  4,532  4,517,698 

1899 S.420  6,842,163 

1904  5.852  9,398,503 

1905  6,034  9,846,707 

Slightly  more  than  one-half  of  the  tonnage  consists  of  imports,  the  prin- 
cipal articles  being  grains  of  all  kinds,  raw  textile  materials,  mineral  ores, 

(398) 


Port  Ad)ninistration  and  Harbor  Facilities  155 

provisions  and  animal  products.  The  exports,  on  the  other  hand,  are  manu- 
factured articles,  wrought  metals,  railway  carriages,  cement  and  glassware. 

The  River  Scheldt,  a  winding  river  with  banks  of  sand,  has  a  tidal  varia- 
tion of  between  twelve  and  twenty-five  feet  at  Antwerp.  At  the  river  front 
it  is  between  three  hundred  and  fifty  and  six  hundred  yards  wide,  and  at 
extreme  low  water  will  admit  vessels  drawing  twenty-five  feet. 

This  tidal  variation  has  made  necessary  a  system  of  docks  with  an 
unchanging  water  level  for  the  convenient  loading  and  unloading  of  smaller 
vessels,  and  the  width  and  depth  along  the  river  front  has  made  possible 
its  utilization  for  the  construction  of  a  fine  system  of  quays  for  the  use  of 
the  large  ocean  liners. 

There  are  eleven  docks  which  range  in  length  from  five  hundred  and 
seventy-four  feet  to  two  thousand  six  hundred  and  forty  feet.  All  are  con- 
nected %vith  sluices.  The  sides  of  the  docks  are  crowded  with  warehouses, 
and  all  are  equipped  with  the  modern  loading  and  unloading  facilities.  The 
widest  entrance  to  the  docks  is  seventy-eight  feet  and  the  depth  is  twenty- 
one  feet,  thus  the  larger  vessels  cannot  enter  except  for  drydocking  when 
light. 

The  system  of  quays  is  growing  very  rapidly  and  now  exceeds  three 
and  one-half  miles  in  length.  The  water  at  the  quays  is  twenty-six  feet  deep 
at  low  tide,  the  mean  rise  of  the  tide  being  fourteen  feet. 

In  1902  the  quays  and  docks  could  accommodate  about  two  hundred  and 
twenty  vtateU  at  one  time,  but  even  this  proved  insufficient  to  meet  the 
growing  requirements  of  the  port,  so  an  extension  was  decided  upon  which 
would  accommodate  twenty  more  vessels. 

The  facilities  for  unloading  the  vessels  are  very  unusual.  There  are 
fifty  miles  of  railway  around  the  quays  and  docks,  and  the  goods  intended 
for  immediate  delivery  can  be  transferred  directly  from  the  vessel  to  the 
railway  trucks,  or,  if  it  is  merchandise  to  be  transshipped,  the  corporation 
wagons  are  in  attendance  to  transport  it  immediately  from  one  vessel  to  another. 
There  are  about  two  hundred  hydraulic  traveling  cranes,  which  lift  the  goods 
directly  from  the  ships  into  the  sheds.  These  sheds  extend  all  along  the 
sides  of  the  quay  within  twenty-five  feet  of  the  front.  They  are  about  one 
hundred  and  seventy-five  feet  wide  and  are  divided  by  spaces  just  sufficient 
to  allow  the  railway  trucks  to  pass  from  the  front  to  the  rear  of  the  shed 
After  the  goods  are  landed  the  merchants  are  aUowed  four  or  five  days  in 
which  to  clear  their  goods  from  the  sheds  free  of  charge  .After  this  time 
the  authorities  can  place  the  goods  where  they  choose  at  the  expense  of  the 
merchant. 

The  municipality  is  the  port  authority  at  Antwerp,  and  all  the  manage- 
ment, with  the  exception  of  the  private  warehouses,  is  in  its  hands.  The 
docks  are  solely  the  property  of  the  city,  but  the  qv.ays  a'cng  the  river  side 
are  not  absolutely  the  property  of  the  city,  since  they  were  constructed  some 
years  ago  with  the  funds  partly  provided  for  by  the  government  and  partly  by 
the  City  of  .Antwerp.  An  arrangement  exists  between  the  town  authorities 
and  the  government  by  which  the  municipality  receives  all  dues  and  then  pays 
the  government  a  certain  proportion. 

(399) 


156  The  Annals  of  the  Aincrican  Academy 

The  working  of  the  port  is  controlled  by  the  town  coimcil,  who  are 
advised  by  a  committee,  which  includes  the  chief  engineer  of  the  town,  the 
chief  engineer  of  state  railways,  the  inspector  of  customs  and  the  president 
of  the  chamber  of  commerce.  The  government  of  Belgium  also  exercises  an 
effective  control  because  it  acts  as  conservators  of  the  river  and  aids  in 
carrying  out  the  extension  of  ihe  quay  walls  and  the  river  accommodations. 
The  government  gets  no  interest  on  its  outlay,  but  is  paid  thirteen-fifteenths 
of  the  earnings  of  the  quays  until  its  capital  outlay  is  repaid. 

The  port  of  Antwerp  has  exceedingly  low  charges  for  port  dues.  This  is 
partly  because  of  the  fact  that  the  imperial  government  has  largely  con- 
tributed to  the  cost  of  improvements  and  has  foregone  all  imperial  dues,  and 
partly  because  the  municipality  has  made  it  a  point  to  keep  the  charges  on 
shipping  as  low  as  possible.  The  port  expenses  of  the  shipowner  are  best 
considered  under  two  heads :  First,  port  dues,  and  second,  port  charges. 
The  port  dues  per  ton  net  register  are  about  io'/2  cents  per  ton  at  the  docks 
and  about  .06  3-10  cents  at  the  quays.  These  charges  are  subject  to  a  reduc- 
tion on  a  vessel  making  repeated  voyages  in  a  year.  The  port  charges  are 
better  understood  by  dividing  them  into  two  heads : 

1.  Charges  in  connection  with  the  navigation  of  the  vessel,  namely, 
pilotage. 

2.  Charges  in  connection  with  the  cargo,  namely,  loading  and  unloading. 
These  are  different  from  the  dock  dues,  since  they  are  for  direct  personal 

services  and  have  to  be  paid  either  directly  to  the  individuals  or  indirectly 
through  the  authorities  to  whom  the  individuals  are  responsible.  The  pilotage 
at  Antwerp  is  compulsory  and  is  a  little  over  yVz  cents  per  ton  net  register ; 
while  the  expenses  for  discharging  the  cargo,  which  consists  in  passing  it 
from  the  vessel  to  the  consignee  or  those  receiving  it  in  his  behalf  on  the 
quay,  depend  upon  the  price  of  the  labor  of  the  dockers,  which  is  about 
one  dollar  per  day. 

Many  suggestions  have  been  made  for  improving  the  harbor,  but  the 
most  important  so  far  offered  is  to  divert  the  River  Scheldt  by  making  a  cut 
across  the  bend  in  the  river,  known  as  the  Grande  Coupure,  and  to  utilize 
one  of  the  banks  for  new  river  berths.  The  people  of  the  City  of  Antwerp 
are  not  eager  for  this  change,  but  would  rather  have  one  long  dock  over 
practically  the  same  route  as  the  Grande  Coupure,  with  locked  entrances  at 
both  ends,  and  then  from  this  main  dock  have  several  branch  docks.  All  the 
land  necessary  for  the  scheme  is  to  be  purchased  by  the  government  and 
then  additions  gradually  will  be  made. 

Another  very  valuable  suggestion  has  been  made  in  regard  to  the  sheds. 
The  authorities  are  not  satisfied  with  the  open  sheds  and  have  proposed  the 
scheme  of  having  sliding  doors.  They  also  propose  to  have  a  double  line  of 
sheds  three  hundred  and  fifty  feet  wide,  so  that  the  front  shed  could  be  used 
for  outgoing  goods  and  the  rear  shed  for  incoming  goods.  This,  together 
with  a  corresponding  increase  in  the  number  of  rails,  will  be  a  most  valuable 
addition  to  the  facilities  for  handling  the  cargoes,  and  when  these  suggestions 
are  carried  out,  which  in  all  probability  will  be  soon.  Antwerp  will  be  able  to 
welcome  any  great  increase  in  trade  with  adequate  facilities. 

(400) 


OUR  STATE  CONSTITUTIONS 


BY 


JAMES  QUAYLE  DEALEY,  Ph.D. 

Professor  of  Social  and  Political  Science,  Brown  University,  Providence,  R.  I 


PHILADELPHIA 

The  American  Academy  of  Political  and  Social  Science 

1907 


Copyright,  1907,  by  the  American  Academy  of  Political  and  Social  Science 
All  rights  reserved 


CONTENTS 


Chapter                                                                                                               Page 
I.    GENERAL  TENDENCIES   IN   STATE  CONSTI- 
TUTIONS      I 

II.     THE  MAKING  OF  CONSTITUTIONS  n 

III.  AMENDMENT,     REVISION,    AND     BILLS    OF 

RIGHTS  17 

IV.  SUFFRAGE  AND  ELECTIONS  24 

V.    THE  EXECUTIVE  DEPARTMENT 30 

VI.    THE  JUDICIAL  DEPARTMENT 36 

VII.     ORGANIZATION    OF   THE   LEGISLATIVE   DE- 
PARTMENT AND  ITS  PROCEDURE 42 

VIII.    LIMITATIONS  ON  THE  LEGISLATURE 50 

IX.     CONSTITUTIONAL     REGULATION      OF     IM- 
PORTANT INTERESTS   55 

X.    RELIGIOUS    PROVISIONS     OF    THE     STATE 

CONSTITUTIONS    62 

XL    POPULAR      REPRESENTATION      IN      STATE 

LEGISLATURES   70 

XII.     CONSTITUTIONS    OF    THE    NEW    ENGLAND 

STATES    83 

INDEX    91 


OUR  STATE  CONSTITUTIONS.^ 


CHAPTER  I. 
General  Tendencies  in  State  Constitutions. 

Throughout  classical  and  medieval  philosophizing  runs  a 
theory  of  a  paramount  or  fundamental  law,  permanent  in  kind, 
because  fixed  in  nature.  This  theory  in  its  modern  form,  after 
voicing  itself  for  a  time  in  the  Cromwellian  period,  came  to  the 
front  in  the  American  Revolution,  and  found  its  proper  expression 
in  the  written  constitution.  In  our  federal  system,  owing  to  the 
rigidity  of  the  national  constitution,  the  development  of  that  docu- 
ment must  be  traced  in  the  varying  decisions  of  the  supreme  court 
of  the  United  States.  In  the  commonwealths  a  more  flexible 
system  of  amendment  prevails,  and  for  that  reason  changes  in 
what  the  states  consider  to  be  their  fundamental  law,  may  be 
traced  more  easily  in  the  constitutions  themselves,  subject  as  they 
are  to  frequent  revision  and  amendment. 

In  the  revolutionary  period  these  constitutions  were  few  in 
number,  small  in  size,  and  contained  a  mere  framework  of  govern- 
mental organization.  Since  that  time  some  two  hundred  state 
constitutions  have  been  made  or  revised.  The  forty-five  now  in 
force  average  in  length  over  fifteen  thousand  words,  the  longest, 
that  of  Louisiana,  having  about  forty-five  thousand.  In  place  of 
fundamentals  only,  they  are  filled  with  details,  so  petty  in  many 
instances,  as  hardly  worthy  even  to  be  dignified  as  statutory. 

This  tendency  to  enlargement  is  not  without  justification. 
The  proper  solution  of  problems  arising  from  the  complexity  of 
modern  interests,  demands  more  wisdom  and  knowledge  than  is 
usually  found  in  legislatures,  which  are  often  incompetent  and 
sometimes  venal.  The  democratic  demand  for  legislation  through 
convention,  is  really  a  demand  for  legislators  of  a  high  grade.  To 
legislatures  in  consequence  are  left  the  mere  details  of  legislation 
with   a   minimum   of   discretion   in   the   formulation   of  statutes. 

»Read  December  27,  1906,  before  the  Third  Annual  Meeting  of  the  American  Political 
Science  Association  at  Providence,  R.  I. 


2  The  Aiuials  of  the  Aiiierieaii  .Icademy 

Their  ability  in  this  sort  of  thing  is  well  seen  in  the  biennial  output 
by  the  states  of  nearly  twenty  thousand  statutes,  three-fifths  of 
which  are  local,  private,  or  special  in  kind. 

Our  present  state  constitutions  represent  different  stages  of 
development  and  may  be  divided  into  four  sets:  (i)  the  six  New 
England  constitvitions,  (2)  the  ten  made  during  the  twenty-five 
years  ending  with  1865,  (3)  the  fourteen  made  from  that  date  up  to 
1886,  and  (4)  the  fifteen  new  and  revised  constitutions  of  the  last 
twenty  vears.  Three  more  will  likely  be  added  to  this  number 
within  the  next  twelve  months,^  and  an  average  of  one  per  year 
may  be  expected  from  that  time  on.  The  process  of  amendment, 
through  which  about  twenty  additions  are  made  annually  to  our 
constitutions,  tends  to  modernize  all  of  these. 

A  comparison  of  these  sets  shows  that  the  starting  point  for 
the  study  of  state  constitutions  is  the  article  on  the  lawmaking 
department .  This  powerful  body  in  revolutionary  days  completely 
overshadowed  the  other  two  departments,  and  was  practically 
the  repository  of  the  sovereign  powers  of  the  state.  Though  the 
theory  of  the  separation  of  powers  was  held,  all  really  important 
powers  were  in  fact  entrusted  to  the  legislature.  This  is  by  no 
means  the  present  condition.  Not  only  have  the  other  two  depart-  ■ 
ments  been  built  up  and  strengthened  at  the  expense  of  the  assem- 
bly, but  three  other  departments  of  government  have  developed 
into  importance,  and  should  be  considered  in  any  discussion  of  the 
division  of  sovereign  powers.  If  the  government  is  that  organiza- 
tion through  which  all  the  sovereign  powers  of  the  state  may  be 
expressed,  then  surely  in  modern  times  we  should  speak  not  merely 
of  the  three  historic  departments  of  government,  viz.,  the  execu- 
tive, the  judicial,  and  the  legislative,  but  also  of  the  differentia- 
tions from  these,  the  administration,  the  electorate,  and  that 
nameless  agency,  which  in  every  state  has  the  legal  right  to  formu- 
late the  fundamental  law,  an  agency  which,  for  want  of  a  better 
name,  may  be  called  the  Legal  Sovereign.  These  six  departments 
unitedly  may  exercise  everv  conceivable  power  included  within 
the  term  sovereignty. 

The  general  tendency  in  regard  to  these  six  departments  of 
government,  as  shown  by  our  existing  constitutions,  will  be  indicated 
in  order,  and  then  attention  directed  to  the  lengthy  series  of  limita- 

*Oklahoma,  Michigan,  and  possibly  Iowa. 


Our  State  Coustitutions  3 

tions  placed  on  the  exercise  of  other  powers  not  removed  from 
legislative  discretion. 

I.  Administyation. — Historically  administration  is  of  course 
part  of  the  executive  function,  but  in  our  rcvolutionar}'  period  it 
was  at  first  controlled  and  in  part  carried  on  by  the  legislatures. 
This  was  done  through  committees,  temporary  and  then  permanent. 
The  work  performed  by  these  was  gradually  transferred  to  paid 
officials,  who,  as  functions  became  specialized,  were  organized,  for 
the  purpose  of  carrying  on  the  work  of  administration,  into  the 
numerous  boards,  commissions,  and  departments  of  government. 
Most  of  our  states  are  still  in  this  stage  of  development.  Every 
new  line  of  activity  results  in  the  formation  of  a  special  board  or 
department,  the  organization  and  powers  of  which  are  frequently 
defined  in  the  constitution.  This  also  regularh'  provides  for  the 
election  by  popular  vote  of  the  heads  of  the  chief  administrative 
departments,  such  as  the  secretaries  of  state  and  of  the  treasury, 
the  comptroller,  or  auditor,  and  the  superintendent  of  education. 
As  these  numerous  boards  and  departments  really  perform  the 
larger  part  of  governmental  business,  it  is  surely  advisable  that  the 
several  articles  and  provisions  of  the  constitution  be  gathered 
together  and  placed  under  a  separate  heading  entitled,  departments 
of  administration.  Their  functions  also  should  be  coordinated, 
unified,  and  thoroughly  supervised.  The  absence  of  such  centrali- 
zation is  perhaps  the  greatest  weakness  in  local  administration. 
Supervisory  control  over  such  bodies  by  legislative  committees 
tends  to  become  merely  nominal,  with  the  inevitable  consequences 
of  inetficency  and  lack  of  economy.  There  is  however  a  strong  ten- 
dency to  center  such  powers  in  the  executive,  making  him  the 
head  of  the  administration  as  in  the  national  system.  This  is  done 
by  bestowing  on  him  large  powers  in  appointment  and  removal, 
authority  to  demand  reports,  and  to  investigate  the  management 
of  departments. 

II.  The  Executive. — Aside  from  control  over  administration, 
the  chief  gain  in  power  on  the  part  of  the  executive  is  his  veto  over 
legislation.  In  1788  two  states  only  had  placed  the  veto  power  in 
their  constitutions,  at  this  time  but  two  states  withhold  it.  Thirty- 
one  states  adopt  the  national  fraction  of  two-thirds  of  both  houses 
to  override  the  veto,  the  other  twelve  prefer  a  majority  or  three-fifths. 
Thirty  states  now  allow  the  governor  to  veto  items  of  appropriation 


4  The  Annals  of  the  American  Academy 

bills,  and  three  of  these  also  allow  him  to  veto  part  or  parts  of  any 
bill.  If  adjourment  intervenes  between  the  sending  of  a  bill  to  the 
governor  and  its  return  approved  or  vetoed,  ten  states  allow  the 
governor  a  period  of  from  three  to  thirty  days  to  decide  whether 
or  not  to  approve  such  bills-.  Eighteen  states  allow  him  to  file 
objections  with  the  secretary  of  state,  thereby  defeating  the  bill. 
The  veto  power,  especially  when  strengthened  by  the  power  to  veto 
items  and  to  approve  or  disapprove  after  adjournment,  has  aided 
greatly  in  the  enlargement  of  the  importance  of  the  executive  and 
in  the  conservation  of  public  interests. 

The  governor's  term  of  office  is  four  years  in  twenty -one  states, 
two  years  in  the  same  number,  three  in  New  Jersey  and  one  year 
in  Massachusetts  and  Rhode  Island.  The  office  of  lieutenant- 
governor  is  still  retained  in  thirty -two  of  the  states.  He  presides 
over  the  senate  in  thirty  of  these.  In  Massachusetts  and  in  Rhode 
Island,  he  is  a  member  of  the  council,  or  of  the  senate,  ex-officio,  but 
presides  only  in  the  absence  of  the  governor,  who  by  constitution 
is  presiding  officer.  The  old-fashioned  executive  council  is  still 
retained  by  three  of  the  New  England  states,  and  a  modified  form 
of  it  in  North  Carolina.  Iowa  by  statute  has  an  executive  council 
made  up  of   the  governor  and  the   heads  of   three  departments. 

III.  The  Jtidiciary  Department. — The  older  constitutions  dis- 
posed of  this  department  in  few  words.  Discretionary  power  was 
conferred  on  the  legislature,  and  judges,  appointed  by  governor 
or  legislature,  usually  held  a  life  tenure.  The  newer  constitutions 
completely  reverse  this  practice.  The  court,  in  the  United  States, 
does  not  simply  decide  cases,  it  interprets  finally  the  constitution, 
and  to  that  extent  is  a  political  factor.  For  this  reason  complex 
business  conditions  and  the  rise  of  corporate  interests,  necessitate 
much  more  attention  to  this  department  of  government.  The 
constitution  of  Louisiana,  for  instance,  devotes  about  twelve  thou- 
sand words  to  the  courts  of  the  state  and  of  the  city  and  parish 
of  New  Orleans.  The  newer  constitutions  regularly  outline  the 
grades  of  courts,  define  their  powers,  set  the  boundaries  for  judicial 
districts,  and  regulate  the  number  and  tenure  of  the  judiciary. 
Three  of  the  original  states  still  retain  a  life  tenure,  but  all  others 
fix  a  term  of  years  for  judges  of  the  supreme  court;  the  term 
varies  from  two  to  twenty -one  years.  Twenty  states  favor  the 
six-year  term,  eight  and  twelve  years  are  the  terms  next  favored, 


Our  State  Constitutions  5 

three  states  have  long  terms,  and  Vermont  a  two-year  tenure. 
Six  states  only  retain  appointment  through  the  governor  aided  by 
council  or  senate.  Four  choose  through  the  legislature,  and  one 
nominates  through  the  governor  and  elects  through  the  assembly. 
The  other  states  all  elect  their  judiciary  and  show  no  tendency  in 
the  other  direction.  Four  of  the  New  England  states  still  allow 
the  governor  or  assembly  to  ask  the  supreme  court  for  opinions  on 
questions  of  law,'  South  Dakota  and  Florida  allow  the  governor 
this  privilege,  but  all  the  other  states  with  greater  wisdom  reject 
this  provision.  There  is  a  marked  tendency  in  the  constitutions  to 
merge  law  and  equity  into  a  common  procedure,  to  modify  the 
jury,  to  define  libel,  and  to  safeguard  the  exercise  of  eminent  domain 
by  quasi-public  corporations.  All  these  tendencies  unitedly  show 
a  strong  determination  to  make  the  judicial  system  responsible 
directly  to  the  electorate. 

IV.  The  Constitutional  Convention. — The  modern  theory  of  a 
fundamental  law,  and  its  embodiment  in  the  written  constitution, 
have  necessitated  the  development  of  a  governmental  agency  for 
the  express  purpose  of  formulating  the  fundamental  law.  Two 
forms  of  this  agency  are  in  use  among  the  states,  the  legislature  and 
the  convention. 

(i)  The  legislature  in  the  performance  of  this  office  is  not  prop- 
erly a  legislature,  but  a  convention.  This  is  shown  by  the  fact 
that  its  recommendations  are  not  sent  to  the  governor  for  his 
approval  or  veto,  but  to  the  electorate  for  final  decision.  The 
older  method  of  amendment  was  through  the  action  of  two  assem- 
blies and  large  fractional  votes  by  assembly  and  electorate.  At 
the  present  time  action  by  one  assembly  is  sufficient  in  twenty  six 
states.  Eighteen  still  require  two  assemblies,  and  the  remaining 
state  (New  Hampshire)  amends  only  in  convention.  All  but 
Delaware  use  the  referendum  for  final  decision.  Seventeen  of  the 
constitutions  still  require  a  two-thirds  vote  of  both  houses  on 
amendments;  seven,  a  three-fifths  vote;  in  sixteen  a  majority  is 
suflEicient.  Only  two  states  require  more  than  a  majority  for  ref- 
erenda, Rhode  Island  (three-fifths),  and  New  Hampshire  (two- 
thirds)  ;  the  usual  requirement,  that  of  twenty -eight  states,  is 
"a  majority  of  those  voting  thereon,"  but  a  few  make  amendment 

'Massachusets,  Maine,  New  Hampshire,  Rhode  Island. 


6  The  Annals  of  the  American  Academy 

well  nigh  impossible  by  requiring  a  majority  of  the  electors,  or  a 
majority  of  those  voting  at  a  general  election. 

(2)  Few  seem  to  realize  the  importance  of  the  constitutional 
convention  in  American  state  governments.  It  is  the  great  agency 
through  which  democracy  finds  expression.  In  its  latest  form, 
that  of  a  body  made  up  of  delegates  elected  from  districts  of  equal 
population,  it  is  one  of  the  greatest  of  our  political  inventions. 
Through  it  popular  rights  may  be  secured  in  the  constitution, 
legislative  tyranny  restrained,  and  powerful  interests  subordinated 
to  the  general  welfare.  Not  that  these  objects  have  as  yet  been 
attained,  but  the  agency  is  here  through  which  an  enlightened 
public  opinion  can  express  itself. 

All  but  thirteen  of  the  states  expressly  provide  for  the  calling 
of  a  convention.  In  twelve  of  the  thirteen,  conventions  can  be 
called  under  legislative  authority.  In  one  state  only  (Rhode 
Island)  is  there  doubt  about  the  matter.  Its  supreme  court  in 
1883,  when  requested  by  the  senate  for  an  opinion,  in  its  reply 
concluded  that  under  the  state  constitution  a  convention  could 
not  be  called.  Judge  Jameson,  however,  in  his  great  work,  On 
Constitutional  Conventions,^  in  discussing  this  opinion  reaches  the 
opposite  conclusion.  If  the  composition  of  the  convention  is 
mentioned  at  all  in  the  constitution,  the  usual  provision  is  that  it 
be  made  up  of  representatives  from  districts  of  equal  population. 
There  are,  however,  a  few  exceptions.  Since  the  year  1890,  under 
the  older  theory  that  the  convention  is  the  repository  of  sovereign 
powers,  five  constitutions  have  been  promulgated  by  conventions 
without  referendum.^  To  check  this  possibility,  fourteen  con- 
stitutions expressly  require  the  referendum,  and  the  other  states 
would  likely  do  so  by  statute. 

V.  The  Electorate. — If  this  body,  instead  of  being  referred  to 
as  the  "sovereign  people,"  should  be  treated,  from  the  legal  stand- 
point at  any  rate,  as  a  governmental  agency,  clearness  in  discussion 
would  be  gained.  Under  the  constitutions  this  governmental 
agency  has  three  sets  of  powers:  (i)  the  power  of  appointment 
to  certain  offices  through  elections;  (2)  the  power  to  assist  in 
lawmaking  through  the  referendum  and  to  some  extent  through  the 
initiative,  and  (3)  the  power  to  assist  in  judicial  decisions  through 

^Fourth  ed.,  pp.  601-615. 

^Mississippi,  South  Carolina,  Delaware,  Louisiana,  Virginia. 


Our  State  Constitutions  7 

service  on  jury.  These  powers  are  steadily  increasing  through  the 
agency  of  the  convention.  The  chief  officials  of  the  state  and 
municipality,  the  lawmakers  of  all  grades,  and  judges,  supreme  and 
inferior,  are  now  regularly  elected  by  popular  vote.  The  verdicts 
of  juries  are  now  often  made  by  a  fraction  of  the  whole,  instead  of 
by  unanimous  vote.  The  referendum  is  generally  required  for  hnal 
decisions  on  fundamental  law,  and  very  largely  on  local  and  general 
statutes.  The  most  remarkable  development  of  this  power  may 
be  found  in  the  constitution  of  Oregon  since  its  amendment  in 
1902.  By  this  the  power  of  initiative  and  referendum  is  fully 
secured  to  the  electorate,  both  in  statutory  and  constitutional 
provisions.  These  powers  of  the  electorate  are  plainly  specified 
in  the  constitutions  and  are  clearly  governmental  in  kind,  as  truly 
so  as  any  other  of  the  agencies  of  the  state. 

The  usual  basis  for  membership  in  the  electorate  is  that  they 
be  male  citizens  of  the  United  States  at  least  twenty-one  years  of 
age.  Nine  states  still  allow  aliens  to  vote  who  have  declared  their 
intentions  to  become  citizens,  four  states  grant  suffrage  to  women, 
eight  states  have  a  slight  educational  qualification,  six  other  states 
have  an  educational  qualification  as  one  of  several  alternatives, 
and  three  of  these  introduce  a  property  qualification  as  an  alterna- 
tive, but  otherwise,  this  historic  restriction  survives  only  in  Rhode 
Island,  in  the  election  of  members  of  city  councils. 

VI.  The  Legislature  or  General  Assembly. — The  revolutionary 
constitutions  differed  widely  in  respect  to  the  organization  and 
membership  of  their  legislatures.  Very  noticeable,  however,  is  the 
present  tendency  to  approximate  toward  a  common  type.  In  all 
the  states  the  legislature  is  bicameral.  Thirty-eight  states  elect 
the  members  of  the  house  biennially;  senators  have  a  four-year 
term  in  twenty-nine  states,  and  twenty-four  provide  for  a  system  of 
class  rotation  in  the  senate.  A  biennial  session  is  required  in 
thirty-eight  states,  and  thirty-one  fix  actually  or  practically  a 
time  limit  for  legislative  sessions ;  this  in  eighteen  states  is  fixed 
at  sixty  days.  The  membership  of  the  state  legislatures  is  unitedly 
about  seven  thousand,  but  nearly  two  thousand  of  these  are  found 
in  the  seven®  states  that  have  assemblies  of  over  two  hundred 
members.  The  size  of  the  membership  in  each  house  naturally 
varies  with  the  population  of  the  state,  but  if  the  seven  mentioned 

•Illinois,  Georgia,  Pennsylvania,  Massachusetts,  Vermont,  Connecticut,  New  Hampshire. 


8  The  Annals  of  the  American  Academy 

above  be  omitted,  the  general  average  is  a  membership  of  about 
thirty-five  in  the  senate  and  ninety  in  the  house.  The  house 
membership  is  regularly  from  two  to  three  times  that  of  the  senate. 

In  seventeen  states  the  membership  of  both  houses  is  made  up 
of  representatives  from  districts  of  equal  population.  In  nineteen 
other  states  there  is  a  requirement  that  a  locality,  either  county 
or  town,  be  represented  in  one  or  both  houses.  In  these  states, 
however,  the  requirement  modifies  only  slightly  the  principle  of 
popular  representation,  and  the  districts  are  practically  of  equal 
population.  In  other  words  thirty -six  of  the  states  make  their 
legislative  houses  popular  in  basis.  The  nine  other  states  depart 
from  this  principle  by  requiring  a  disproportionate  representation 
for  their  rural  towns,  or  countries  of  small  population.  The  worst 
offenders  in  this  respect  are  Delaware,  Maryland,  Vermont,  Con- 
necticut and  Rhode  Island. 

Limitations  on  Legislatures. — Under  the  national  constitution 
the  powers  not  delegated  to  the  federation  nor  prohibited  to  the 
states  are  reserved  to  the  states.  This  reserved  power  may  be  exer- 
cised in  each  state  by  its  legislature,  unless  the  local  constitution 
redelegates  parts  of  this  power  to  the  other  departments  of  govern- 
ment, and  places  restrictions  and  prohibitions  on  legislative  use  of 
the  remainder. 

One  would  think  that  since  our  legislators  usually  come  from 
districts  of  equal  population  they  would  by  constitution  be  en- 
trusted with  large  discretionary  powers  in  legislation.  This,  how- 
ever, is  far  from  being  the  fact.  There  is  a  steadily  increasing 
tendency  to  restrict  in  every  possible  way  the  enormous  powers 
of  legislatures.  In  general  the  length  of  a  constitution  indicates 
the  amount  of  restriction  placed  on  lawmaking.  Every  provision 
in  a  Bill  of  Rights  limits  by  so  much  legislative  initiative.  The 
rapidly  increasing  powers  of  the  executive  and  the  electorate  in 
appointment,  administration,  and  lawmaking  are  all  at  the  expense 
of  the  assembly;  the  growth  in  importance  of  the  constitutional 
convention  subordinates  proportionately  its  rival,  the  legislature. 
Every  article  in  the  constitution  that  fixes  the  organization  and 
powers  of  a  department  of  administration,  or  division  of  govern- 
ment, or  defines  a  policy  in  regard  to  important  interests,  is  to 
that  extent  a  restriction  on  legislative  discretion.  Yet  in  the  newer 
constitutions  one  may  expect  to  find,  as  already  indicated,  lengthy 


Our  State  Constitutions  g 

articles  on  the  judicial  and  administrative  departments,  and  more- 
over much  regulation  of  taxation,  finance,  local  government, 
education,  elections  and  the  suffrage;  land,  mines,  corporate  inter- 
ests and  labor.  To  these  regulations  should  be  added  long  lists 
of  prohibitions  such  as  those  against  special  or  local  legislation,  and 
numerous  regulations  of  procedure  in  respect  to  the  handling  of 
bills.  Subtract  all  these  limitations  on  legislative  powers  from 
the  totality,  and  the  question  may  then  well  arise  whether  it  will 
ultimately  prove  worth  while  to  retain  an  expensive  legislature  to 
exercise  its  small  residue  of  petty  powers.  A  convention  meeting 
periodically,  and  well  supervised  administrative  departments  with 
ordinance  powers,  might  perform  all  legislative  functions  with  entire 
satisfaction. 

It  seems  plain  that  the  really  important  lawmaking  body  at  the 
present  time  is  the  convention.  Its  members  are  of  a  higher  grade 
and  turn  out  work  distinctly  superior  to  that  of  legislatures. 
These  really  are  bodies  having  chiefly  ordinance  powers.  When- 
ever, through  sudden  changes  in  conditions,  a  legislature  unexpect- 
edly develops  large  discretionary  power  in  statute-making,  the 
next  convention  in  that  state  settles  the  principle  itself  and  thereby 
adds  another  limitation  to  legislative  initiative.  If  this  tendency 
continues,  the  biennial  session  will  become  quadrennial,  the  term 
be  limited  to  forty  or  sixty  days,  and  every  inducement  offered 
our  legislators  to  do  as  little  and  to  adjourn  as  speedily  as  possible. 
On  the  other  hand  if  our  states  can  make  improvements  in  the 
legislative  system,  and  select  a  better  grade  of  legislators,  our 
lawmaking  might  continue  to  be  entrusted  to  legislatures,  whose 
members,  as  the  early  constitutions  of  Maryland  and  Vermont 
put  it,  should  be  persons  "most  wise,  sensible,  and  discreet,"  and 
"  most  noted  for  wisdom  and  virtue." 

In  conclusion,  attention  may  well  be  called  to  the  practical 
disappearance  from  our  constitutions  of  some  old-time  provisions. 
Among  these  may  be  mentioned  the  annual  election,  and  the 
annual  session,  the  governor's  council,  and  unequal  representation 
of  the  people  in  lawmaking  bodies;  the  life  tenure  of  judges,  and 
the  advisory  capacity  of  the  supreme  court.  Religious  restrictions 
on  office-holding,  and  the  property  qualification  for  suffrage,  with 
very  slight  exceptions,  have  gone;  the  town  system  of  New  Eng- 
land is  dying  in  that  section  and  does  not  exist  outside  of  it.     The 


10  The  Annals  of  the  American  Academy 

real  local  units  of  administration  now  are,  (i)  the  rural  county  with 
its  numerous  subdivisions,  and  (2)  the  incorporated  city,  both 
of  which  are  gaining  power  throughout  the  United  States. 

If  general  tendencies  in  the  making  of  constitutions  may  be 
condensed  into  a  sentence,  we  may  say  that  governmental  powers 
are  centering  into  the  electorate,  which  voices  itself  through  the 
ballot  and  the  convention. 


CHAPTER  II. 

The  Making  of  Constitutions. 

The  Wriiten  Constitution. — The  United  States  has  made  many  a 
contribution  to  the  theory  and  practice  of  modern  poHtics.  Among 
these  by  no  means  the  least  is  the  written  constitution.  Devel- 
oped during  the  throes  of  the  Revolution,  one  hundred  and  thirty 
years  ago,  it,  and  its  agency  the  convention,  have  been  the  chief 
means  through  which  democracy  has  made  its  demands  and  fixed 
them  in  the  law  of  the  land.  A  convention,  democratically  organ- 
ized, voices  the  will  of  the  people.  This  will,  formulated  into  the 
fundamental  law,  is  a  guaranty  of  Hfe  and  liberty,  and  a  surety 
against  governmental  injustice  and  tyranny. 

Thomas  Jefferson,  the  apostle  of  American  democracy,  used  to 
argue  that  the  constitution  of  every  state  should  be  revised  at  least 
once  every  twenty  years,  so  as  to  allow  each  generation  to  determine 
for  itself  its  fundamental  law.  His  argument  is  even  more  true 
since  his  day,  for  the  conditions  of  life  so  rapidly  change  through 
advancing  civilization,  that  modifications  in  fundamental  law 
must  be  made  at  frequent  intervals.  These  modifications,  as 
Judge  Jameson^  puts  it,  are  regularly  made  through  a  legislature 
and  the  referendum,  when  the  purpose  "is  to  bring  about  amend- 
ments which  are  few  and  simple,  and  independent ;"  but  a  new  con- 
stitution or  a  revision  of  an  existing  constitution,  demands  the 
services  of  a  convention,  which  "only  is  appropriate  or  permissible." 

Our  state  constitutions,  both  past  and  present,  so  reflect  the 
changing  conditions  and  varied  interests  of  our  country,  that  a 
study  of  them  affords  a  perfect  mirror  of  American  democracy. 
No  one  can  arise  from  this  study  without  a  full  conviction  that  our 
political  institutions  are  established  on  firm  foundations,  and  that 
we  are  slowly  working  out  a  mass  of  constitutional  principles  in 
harmony  with  morality  and  intelligence. 

The  earliest  of  our  state  constitutions  are  far  inferior  to  those 
of  lat-er  date.  The  statesmen  of  those  days,  though  with  the  best 
of  intentions,  had  not  a  full  grasp  of  democratic  principles,  nor  had 

'On  Constitutional  Conventions,  pp.  6io-6ii,  fourth  edition. 

(II) 


12  The  Annals  of  the  American  Academy 

they  had  much  pohtical  experience  in  handhng  great  governmental 
interests.  Since  their  day  over  two  hundred  constitutions  have 
been  made  in  this  country  alone,  and  the  conflicting  experiences 
of  our  numerous  states  supply  ample  material  for  study.  Conse- 
quently, it  is  entirely  possible  for  a  state,  profiting  by  past  expe- 
riences and  present  constitutions  to  prepare  a  fundamental  law, 
which  shall  express  the  best  American  political  ideals  and  practices. 
It  is  hoped  that  this  series  of  papers  may  prove  of  some  slight  help 
at  least,  in  promoting  this  possibility. 

Constitution  Making. — Historically  our  present  state  con- 
stitutions represent  four  distinct  periods  of  political  development. 
The  first  set^  is  composed  of  the  constitutions  of  the  six  New 
England  states.  These  are  old-fashioned  in  type,  are  funda- 
mentally based  on  the  outgrown  system  of  town  government,  and 
are  so  difficult  of  amendment  that  they  retain  many  obsolete 
features,  and  therefore  are  no  longer  suitable  as  models  for  modern 
states.  The  best  of  these  is  the  constitution  of  Massachusetts. 
The  combination  of  ultra-conservative  rural  towns  and  a  mass  of 
immigrant  population  ignorant  of  our  political  institutions,  affords 
little  hope  that  these  constitutions  can  be  modernized  without  long 
agitation  and  considerable  difficulty.  The  second  set^  consists  of 
those  constitutions  made  in  the  period  embracing  the  twenty-five 
years  before  the  ending  of  the  Civil  War.  These  ten  constitutions 
are  democratic  in  principle  and  excellent  in  tone,  but  do  not  include 
the  experience  of  later  years,  except  as  some  of  these  have  crept 
in  through  amendment.  The  third  set,*  fourteen  in  number, 
represents  in  the  main  the  changes  necessitated  by  reconstruction 
in  the  South,  and  by  economic  changes  North  and  South,  as  the 
result  of  the  war.  The  last  set,  fifteen  in  number,  consists  of  two 
groups,  one  made  up  of  the  seven'  new  mining  and  agricultural 
states  of  the  Far  West,  and  the  others,"  representing  later  read- 

'Vermont,  1703;  Massachusetts,  17S0;  New  Hampshire,  1784;  Connecticut,  1S18;  Maine 
iSiQ,  and  Rhode  Island,  1842. 

'New  Jersey,  1842;  Wisconsin,  1848;  Michigan,  1830;  Indiana  and  Ohio,  1851;  Iowa, 
Oregon,  Minnesota.  i8s7,  Kansas,  1859;  and  Nevada,  1S64. 

••Maryland,  1867 ;  Tennessee  and  Illinois,  1870;  West  Virginia,  1872;  Pennsylvania, 
1873;  Arkansas,  1874;  Texas,  Missouri,  North  Carolina  and  Nebraska,  1875;  Colorado,  1S76; 
Georgia,  1877;  California,  1879,  and  Florida,  1886. 

'North  Dakota,  South  Dakota,  Montana,  Idaho,  Wyoming,  Washington,  in  1889;  Utah, 
189s. 

•Mississippi,  1890;  Kentucky,  1891;  New  York,  1894;  South  Carolina,  1895;  Delaware, 
1897;  Louisiana,  1898;  Alabama,  1 901,  and  Virginia,  1902. 


Our  State  Constitutions  13 

justments  to  changed  economic  conditions  since  the  war,  and  in 
the  South  readjustment  in  the  matter  of  negro  suffrage. 

Besides  these  constitutions  there  is  an  annually  increasing 
mass  of  amendments  added  through  legislature  and  referendum. 
In  the  decade  from  1894-1904  three  hundred  and  eighty-one 
amendments  were  voted  on  by  the  electorates  of  the  several  states, 
two  hundred  and  seventeen  of  which  were  adopted  and  one  hundred 
and  sixty-four  rejected.  Evidently  a  knowledge  of  these  amend- 
ments also  is  necessary,  representing  as  they  do  the  current  con- 
tribution of  pohtics  toward  the  supposed  defects  and  shortcomings 
of  existing  constitutions. 

The  length  of  recent  constitutions  is  one  reason  for  so  large  a 
number  of  amendments.     The  earliest  constitutions  seldom  con- 
tained over  five  thousand  words  and  averaged  much  less.     Now,  the 
shortest  constitution  (Rhode  Island)  contains  about  six  thousand 
words,  the  average  is  about  fifteen  thousand  and  five  hundred,  and 
the  three  largest  are  codes  in  themselves.'     This  lengthening  of 
constitutions  is  to  some  extent  due  to  a  failure  on  the  part  of  con- 
stitution makers  to  distinguish  between  fundamental  and  statutory 
law,  coupled  with  a  natural  desire  to  magnify  their  importance  as 
lawmakers;  but  it  is   chiefly  due  to  two  causes:  (i)  the  growing 
complexity  of  modem  hfe  and  the  rise  of  many  new  interests  that 
seem  to  demand  attention;  and  (2)  there  is  so  great  a  distrust  of 
legislatures,    and   charges   of   incapacity    and   corruption   are   so 
common,  that  conventions  incHne  to  limit  and  regulate  in  every 
possible  way  the  powers  of  legislatures,  so  as  to  reduce  the  possi- 
bility of  mischief.     Time  and  experience  will  probably  remedy 
this  wordy  defect  and  it  is  not  Hkely  that  any  future  constitution 
will  surpass  in  size  that  of  Louisiana.     Constitutions  so  verbose 
require  frequent  amending.     The  first  legislature  of  Louisiana,  for 
instance,  after  the  adoption  of  its  unwieldy  constitution,  submitted 
one  amendment ;  the  second  legislature,  six ;  and  the  third  legislature 
fifteen.     Such  a  system  hopelessly  confuses  the  distinction  between 
fundamental  and  statutory  law,  and  is  unnecessary  if  conventions 
understand  their  business. 

They  can  in  many  cases  omit  whole  articles,  sections,  or  para- 
graphs.    They  can  omit  very  many  petty  details  that  might  be 

^Alabama  uses  thirty-three  thousand  words.  Virginia  thirty-five  thousand,  and  Louisiana. 
about  forty-five  thousand. 


14  The  Aiiiials  of  the  Aincricaii  /Icadcmy 

left  with  perfect  safety  to  legislatures.  If  more  attention  were 
paid  to  improvement  in  the  quality  of  legislators,  matters  of  still 
larger  importance  could  be  wisely  left  to  their  discretion.  This 
improvement  can  be  obtained  by  the  use  of  smaller  houses,  longer 
terms,  and  better  pay,  supplemented  by  efiticient  primary  and 
election  laws.  Again,  the  referendum  is  now  so  well  understood 
that  it  can  be  effectively  used,  along  with  the  governor's  veto,  as  a 
check  on  vicious  legislation.  In  other  words  the  real  check  on  a 
legislature  is  not  secured  by  turning  the  constitution  into  a  statu- 
tory code,  but  by  making  use  of  the  experiences  of  our  states  and 
their  most  successful  devices  in  securing  efficient  government. 

Miscellaneous  Matters. — ^A  comparison  of  constitutions  shows 
that  a  constitution  regularly  consists  of  a  preamble,  an  enacting 
clause,  a  bill  of  rights,  articles  on  the  several  departments  of  gov- 
ernment and  their  subdivisions,  an  article  defining  suffrage  priv- 
ileges, an  article  of  miscellaneous  provisions,  an  article  devoted  to 
amendment  and  revision,  a  ratification  clause,  and  a  schedule 
containing  provisions  of  temporary  importance,  such  as  arrange- 
ments for  the  substitution  of  the  new  for  the  old  order  of  things. 

The  Preamble,  which  is  a  statement  of  reasons  and  purpose,  is 
regularly  included  in  the  same  paragraph  as  the  enacting  clause 
(Delaware's  is  an  exception).  In  general  it  follows  the  thought  of 
the  preamble  of  the  national  constitution,  but  differs  in  that  some 
reference  to  God  is  regularly  found  in  the  preambles  of  the  states.* 

In  thirty  enacting  clauses  the  wording  is:  "We,  the  people  .  .  . 
do  ordain  and  establish."  In  most  of  the  others  the  wording  is 
either  "We,  the  people  ...  do  ordain,"  or  "We,  the  people  .... 
establish."  Maryland  says,  "We,  the  people  .  .  .  declare,"  three 
states  omit  the  pronoun  We,  and  one  state,  Tennessee,  says,  "We, 
the  delegates."  The  most  concise  clauses  may  be  seen  in  the  con- 
stitutions of  New  York  and  Michigan.  A  lengthy  type  is  that  of 
Massachusetts. 

In  three  of  the  constitutions,^  the  Bill  of  Rights  comes  first  after 
the  enacting  clause  or  preamble,  and  before  the  articles.  In  thirty- 
three  constitutions  it  makes  the  first  article,  in  seven  it  is  either 
the  second  or  third  article,  in  one,  South  Dakota,  it  is  the  sixth. 
One  state,  Michigan,  more  wisely  omits  it  entirely  by  name,  but 

'But  see  Chapter  X. 
•Florida,  Kansas,  Maryland. 


Our  Stale  Constitutions  15 

inserts  its  usual  provisions  tinder  their  proper  heads  in  the  main 
body  of  the  constitution." 

Twenty-one  of  the  constitutions  contain  each  an  article 
defining  the  boundaries  of  the  state.  This  is  not  a  matter  over  which 
the  state  has  final  jurisdiction,  and  the  article  properly  is  omitted 
in  most  of  the  constitutions.  Thirty  of  the  constitutions  contain 
a  short,  but  unnecessary  article  on  the  "Distribution  of  Powers." 
Seventeen  of  the  thirty  use  this  particular  title,  but  the  other 
thirteen  use  seven  variations  of  this  wording.  Seven  of  the  other 
fifteen  constitutions  mention  the  separation  of  powers  in  other 
articles,  but  the  other  eight  save  space  by  omitting  it  entirely.  A 
simple  form  of  the  article  may  be  found  in  the  constitution  of 
Rhode  Island,  the  ordinary  form  is  that  of  Indiana,  and  an  exag- 
gerated form  is  that  of  Alabama,  which  copied  the  substance  of  its 
provision  from  Massachusetts.  In  arranging  the  order  of  the 
usual  three  departments  of  government,  the  arrangement  regularly 
is,  legislative,  executive,  judicial;  but  three  states"  place  the  execu- 
tive before  the  legislative,  following  the  historical  order,  rather 
than  the  order  of  importance.  As  the  electorate  represents  the 
people,  there  is  a  marked  tendency  in  many  of  the  constitutions, 
seventeen  in  all,  to  place  the  article  on  suffrage  among  the  first,  as 
though  to  emphasize  the  precedence  of  the  voters  over  the  several 
departments  of  governments.  This  article  logically  should  be 
called  The  Electorate,  or  Qualifications  for  Electors,  but  as  a  rule 
some  variation  of  the  term  Suffrage  is  used  instead. 

A  curious  feature  of  some  constitutions,  old  and  new,  is  the 
insertion  by  requirement  of  congress,  of  an  ordinance,  which  may 
not  be  repealed  without  the  consent  of  congress,  Article  III  in  the 
constitution  of  Utah  for  example.  Congress  has  full  power  to 
demand  that  a  territory  place  certain  articles  in  its  constitution  as 
a  prerequisite  to  admission.  Once  the  territory  becomes  a  state, 
however,  the  obligation  to  retain  such  articles  is  probably  moral, 
not  legal.  Otherwise,  it  would  be  hard  to  say  just  how  such 
"irrevocable"  articles  can  be  reconciled  with  any  constitutional 
theory  of  the  equality  of  states  in  their  local  sovereignty.  It  might 
be  interesting  to  speculate  as  to  what  would  liappen  if  one  of  these 
states  should  later  deny  the  right  of   congress  to  place  perpetual 

'"For  instance  under  Articles  IV,  VI,  and  XVIII. 
"Colorado,  Kansas,  Maryland. 


i6  The  Annals  of  the  American  Academy 

limitations  on  its  sovereignty  as  a  state  of  the  Union.  Territories, 
however,  in  becoming  states  have  learned  not  to  "look  a  gift  horse 
in  the  mouth,"  and  congress  in  its  turn  may  prefer  to  ignore  the 
fate  of  such  articles  after  the  lapse  of  a  few  years'  time.^^ 

The  Schedule  is  now  regularly  found  in  most  of  the  constitu- 
tions (32),  though  almost  unknown  in  the  earlier  constitutions  and 
not  now  always  essential.  Its  place  properly  is  as  an  addition  to 
the  constitution,  not  as  a  part  of  it,  since  its  provisions  are  of  tem- 
porary importance  only.  Seventeen  constitutions,  however,  in- 
clude it  in  the  constitution  itself  as  one  of  the  articles.  In  some 
cases  this  is  due  to  a  failure  to  keep  the  schedule  for  temporary 
provisions  only,  matter  being  inserted  which  might  more  properly 
go  under  Miscellaneous  Provisions."  The  better  place  for  the 
schedule  may  be  seen  in  the  new  constitutions  of  Delaware,  Ala- 
bama and  Virginia,  though  it  might  more  correctly  be  placed  after 
the  ratification  clause,  so  as  to  keep  it  entirely  separate  from  the 
constitution.  Its  authority  could  be  attested  by  the  signatures  of 
the  president  and  secretary  of  the  convention  as  in  the  case  of 
ordinances.  So  much  space  is  taken  up  in  constitutions  with 
apportionments  of  districts  and  their  boundaries,  that  the  question 
arises  why  these  should  not  be  placed  in  the  schedule,  and  author- 
ity given  the  legislature  to  alter  them  at  its  discretion,  without 
referendum.  The  use  of  the  ordinance  is  well  illustrated  in  the 
work  of  the  last  convention  that  made  a  constitution  for  South 
Carolina. 

A  matter  of  some  little  importance  is  the  method  of  number- 
ing the  several  sections  of  the  constitution.  A  cumbersome  and 
old-fashioned  system  may  be  found  in  the  constitution  of  Massa- 
chusetts. The  others,  with  some  exceptions,  use  the  plan  of  the 
national  constitution,  viz.,  articles  numbered  with  Roman  numerals 
subdivided  into  sections  with  Arabic  numerals.  Louisiana,  Mis- 
sissippi, Kentucky,  Alabama,  Virginia  and  North  Dakota  much 
more  sensibly  imitate  the  earlier  French  constitutions,  and  number 
paragraphs  consecutively  with  Arabic  numerals,  inserting  titles 
in  their  proper  places  with  or  without  Roman  numbers.  New 
Hampshire  uses  the  same  system,  except  that  its  constitution  is 
divided  into  two  parts,  and  each  is  numbered  consecutively. 

>2The  enabling  act  for  Oklahoma  is  unusually  severe  in  its  requirements  of  this  sort. 
"This  article  may  be  overworked.     Texas,  for  example,  has    fifty-seven  sections  in  it» 
General  Provisions. 


CHAPTER^IIL 

Amendment,  Revision,  and  Bills  of  Rights. 

Amendment  and  Revision. — The  amending  article  of  a  con- 
stitution undoubtedly  demands  most  careful  attention.  In  some 
respects  it  is  its  most  important  article.  It  may  be  so  worded  as  to 
make  the  constitution  practically  unalterable  and  thereby  hinder 
progress.  Many  of  our  states  are  thus  hindered  and  can  find  no 
way  out  of  their  dilemma.  Such  blunders  in  phraseology  would 
be  entirely  unnecessary,  if  conventions  were  familiar  with  the 
experiences  of  many  of  our  states,  and  with  the  development  of 
our  processes  of  amendment.  An  explanation  of  these  processes 
will  now  be  set  forth,  as  briefly  as  the  importance  of  the  subject 

will  admit. 

Some  of  our  earliest  state  constitutions  contained  no  provisions 
for  their  amendment.  This  proved  no  bar  to  alteration,  for  they 
were  amended  or  revised  hke  ordinary  legislation  or  in  convention. 
Gradually  provisions  were  introduced  authorizing  the  legislatures 
to  submit  amendments  for  popular  approval  or  rejection.  In  some 
constitutions  there  was  a  further  provision  that  an  entire  revision 
might  be  made  by  a  convention  convoked  for  that  special  purpose. 
This  body  was  usually  called  together  by  the  legislature,  but  in  two 
states,  Pennsylvania  and  Vermont,  by  a  special  body  known  as  the 
board  of  censors,  which  was  empowered  to  convoke  a  convention 
and  to  submit  amendments. 

In  recent  years  at  least  five  legislatures  have  authorized 
special  commissions  to  recommend  amendments,  viz..  New  York, 
1872;  Michigan,  1873;  Maine,  1875;  New  Jersey,  1881;  Rhode 
Island,  1897.  In  Louisiana  a  joint  committee  of  both  houses 
prepared  in  1894  a  series  of  about  twenty  amendments.  The 
reports  of  two  of  these  commissions,  Michigan  and  Rhode  Island, 
were  not  simply  amendments  to  the  constitutions,  but  complete 
revisions  thereof.  Both  these  revisions  were  rejected  when  sub- 
mitted in  Michigan,  March,  1874,  and  in  Rhode  Island,  November, 
1898,  and  again  in  June,  1899.  The  report  of  the  New  Jersey  com- 
mission was  never  finally  acted  on,  and  the  reports  of  the  Maine  and 

(17) 


i8  The  Annals  of  the  American  Academy 

New  York  commissions  were  adopted  in  part.  The  Louisiana 
report  was  entirely  rejected  at  the  polls  in  1896.  At  the  present 
time  boards  of  censors  are  no  longer  used,  and  commissions  can 
hardly  yet  be  considered  a  permanent  feature  of  our  amending 
system.  There  remain,  therefore  (i)  the  method  of  revising 
through  a  convention  especially  convoked  for  that  purpose,  and  (2) 
the  method  of  amending  through  the  initiation  of  the  legislature 
and  ratification  by  popular  vote. 

Revision.— AW  but  thirteen^  of  the  constitutions  expressly  make 
mention  of  a  convention  for  the  purposes  of  revision.  It  is  now 
considered  far  better  to  do  so.  Although  the  best  authorities  assert 
that  states  can  call  conventions  under  general  legislative  powers, 
and  nearly  all  have  done  so  one  or  more  times,  yet  it  is  far  safer  to 
insert  the  provision  expressly,  with  such  safeguards  as  will  allow 
the  use  of  a  convention  whenever  necessity  demands.  Six  states 
provide  that  the  question  of  calling  a  convention  must  be  sub- 
mitted at  stated  intervals,  every  twenty  years  (Maryland,  Ohio, 
New  York),  sixteen  years  (Michigan),  ten  years  (Iowa),  and  seven 
years  (New  Hampshire) ;  but  in  that  case  it  is  better  to  insert  as 
New  York  does  "and  also  at  such  times  as  the  legislature  may  by 
law  provide." 

When  constitutions  authorize  a  convention,  the  usual  pro- 
cedure is  that  the  legislatures  submit  the  question  to  referendum. 
Nineteen  of  the  states  require  that  the  referendum  be  authorized  by 
a  two-thirds  vote  of  each  House,  nine  require  a  majority  and  one 
a  three-fifths  vote.  The  real  difficulty  in  calling  a  convention 
arises  from  the  wording  in  regard  to  the  referendum  vote.  No 
matter  how  much  interest  there  may  be  in  a  state  on  the  question, 
it  is  simply  impossible  to  get  a  much  larger  vote  on  the  referendum 
than  about  one-half  of  the  usual  vote  at  a  general  election.  If  there- 
fore a  constitution  provides  that  a  "majority  of  the  voters  of  the 
state,"  or  "a  majority  of  all  the  voters  voting  at  a  general  election" 
must  vote  for  a  convention,  that  state  might  almost  as  well  give  up 
all  thought  of  ever  holding  a  convention. 

Fifteen  states  have  such  requirements  and  in  consequence  can 
hold  conventions  if  at  all  only  after  years  of  agitation  and  expense.' 

'Massachusetts,  Connecticut,  Vermont,  Rhode  Island,  New  Jersey,  Pennsylvania,  Missis- 
sippi, Louisiana,  Texas,  Arkansas,  Indiana,  North  Dakota,  Oregon. 

'For  late  cases  bearing  on  this  question  see  State  vs.  Powell,  27  So.  Q27  ;  Russell  vs.  Croy, 
63  S.  W.  849  ;/m  re  Denny,  59  N.  E.  359. 


Our  State  Constitutions  19 

Twelve  states  more  wisely  word  the  requirement  a  "majority  of 
those  voting  thereon, "and  thereby  avoid  future  trouble.  Most  of 
the  constitutions  (19)  require  that  the  referendum  be  submitted  at 
a  general  election,  but  a  few  leave  the  time  to  the  legislature  or 
require  a  special  election.  Experience  shows  that  it  is  safer  to 
specify  the  basis  of  representation  in  the  convention.  It  should 
never  be  the  same  as  the  legislature  itself,  though  four  states  have 
such  a  provision,  Maryland  for  example.  Sixteen  constitutions 
use  the  house  as  the  basis,  requiring  that  it  be  equal  in  member- 
ship to  ^that  of  the  house  (Nebraska  for  example)  or  double 
(Wyoming)  or  based  on  population  (Georgia).  Delaware  uses  the 
house  basis  and  adds  two  from  each  county,  but  there  are  three 
counties  only  in  the  state.  Three  require  that  it  be  twice  that  of 
the  senate  (Illinois,  Colorado,  Missouri),  and  New  York  requires 
that  it  be  three  times  that  of  the  senate  plus  fifteen  elected  at  large. 
In  the  earlier  years  of  our  history  conventions  frequently  promul- 
gated constitutions  made  by  them  on  their  own  authority,  without 
referendum.  After  the  first  generation,  however,  the  contrary 
held  true  in  the  main  down  to  1890.  Since  that  year  five  conven- 
tions have  promulgated  constitutions  without  referenda.'  Con- 
ventions have  that  power  unless  restrained  by  local  precedent, 
statute,  or  constitution,  and  for  that  reason  fourteen  states  require 
that  no  constitution  go  into  effect  unless  ratified  by  the  people. 
In  some  cases  they  also  specify  the  vote,  as  in  the  case  of  a  con- 
vention, viz.,  "a  majority  of  those  voting  thereon"  (6)  or  "a 
majority  of  the  electors  voting  at  the  election"  (4).  The  straits 
to  which  a  state  having  this  last  requirement  may  be  driven  is 
shown  by  legislation  recently  passed  in  Nebraska  1901  and  Ohio, 
1902.  Those  laws  declare  that  if  a  state  convention  of  a  political 
party  declares  for  or  against  a  constitutional  amendment,  such 
declaration  shall  be  considered  a  portion  of  the  partv  ticket,  and 
that  a  straight  vote  for  the  party  shall  be  counted  as  a  vote  for  or 
against  the  amendment.  How  much  better  not  to  insert  such 
requirements  than  to  have  to  resort  to  such  devices ! 

Voting  on  Amendments. — -Constitutions  regularly  provide  that 
when  legislatures  pass  amendments  the  vote  must  be  by  yea  and 
nay  and  recorded.  Provision  is  also  made  for  publication  for  a 
certain  specified  number  of  weeks  or  months  before  the  election. 

'Mississippi,  South  Carolina,  Delaware,  Louisiana,  Virginia. 


20  The  Annals  of  the  American  Academy 

Publication  is  usually  required  to  be  through  the  newspapers  but 
may  be  "after  such  publication  as  may  be  deemed  expedient" 
(California). 

Forty-four  of  our  states  provide  methods  of  amendment,  the 
exception  being  New  Hampshire,  which  amends  only  through  a 
convention.  When  constitutions  were  brief  and  contained  nothing 
but  fundamentals,  the  process  of  amendment  was  properly  difficult. 
This  was  attained  by  the  requirement  of  the  action  of  two  legisla- 
tures, and  large  fractions  in  voting.  But  when  constitutions 
became  lengthy  as  at  present,  the  process  had  to  become  easier. 
This  development  may  be  seen  in  the  following  statements : 

Eighteen  states  still  require  the  action  of  two  legislatures  on 
amendments,  one  is  sufficient  in  the  other  twenty -six.  If  sessions 
were  annual  as  formerly,  the  requirement  of  two  sessions  meant  a 
period  of  two  or  three  years  from  initiation  to  referendum.  But 
with  biennial  sessions  the  time  lengthens  to  four  or  five  years. 
One  session,  therefore,  is  naturally  dropped.  Of  the  states  that 
still  require  the  action  of  two  legislatures  Delaware  alone  uses  no 
referendum.  South  Carolina  and  Mississippi  have  the  referendum 
take  place  between  the  action  of  the  two  legislatures.  Connecticut, 
Vermont,  Massachusetts  and  Tennessee  have  variations  in  voting 
requirements  and  the  other  eleven^  states  have  action  of  two  legis- 
latures precede  the  referendum. 

Seventeen  constitutions  require  that  amendments  be  sub- 
mitted by  two-thirds  vote  of  each  House,  sixteen  require  a  majority 
only,  and  seven  a  three-fifths  vote.  Four  of  the  states  that  employ 
action  of  two  legislatures  require  one  action  by  two-thirds  vote 
and  the  other  by  majority. 

The  referendum  requirement  in  twenty-eight  states  is  "a 
majority  of  those  voting  thereon,"  fourteen  have  some  variation 
of  the  objectionable  "majority  of  electors"  already  referred  to, 
Rhode  Island  requires  a  three-fifths  vote,  New  Hampshire  requires  a 
two-thirds  vote,  and  Delaware,  as  already  said,  uses  no  referendum 
for  amendments.  A  general  election  is  specified  in  twenty-one 
constitutions.  To  avoid  "rider"  amendments,  twenty-eight  of  the 
States  require  that  each  amendment  shall  be  submitted  separately. 
Kentucky  adds  that  each  must  contain  one  subject  only,  and  Ala- 

*Rhode    Island,    New  Jersey,   New  York,  Virginia,    Pennsylvania,  Indiana,  Wisconsin . 
Iowa,  North  Dakota,  Nevada,  Oregon. 


Our  State  Constitutions  2i 

bama  insists  that  the  substance  of  each  be  printed  on  the  ballot. 
Six  states  place  limitations  on  the  number  of  amendments  to  be 
submitted  at  one  time,  the  number  var>-ing  from  two  to  six  (Colo- 
rado as  amended  1900).  Five  states  forbid  action  on  a  rejected 
amendment  until  after  a  specified  period,  varying  from  four  to  six 
years  (Tennessee).  While  it  is  fairly  well  understood  throughout 
the  United  States  by  precedent  and  decision  that  the  executive 
has  no  right  of  veto  over  actions  on  conventions  or  amendments, 
yet  Alabama,  Kentucky  and  Mississippi  make  assurance  doubly 
sure  by  saying  so.* 

The  Initiative  and  Refcrcndjim. — The  most  interesting  experi- 
ment in  constitutional  amendment  of  recent  years  is  found  in  an 
amendment  adopted  in  Oregon  June,  1902.  This  authorizes  8  per 
cent  of  the  voters  of  the  state  to  initiate  amendments  to  the  con- 
stitution. These,  if  presented  four  months  previous  to  a  regular 
election  are  voted  on  at  the  election,  and  a  majority  of  votes  in 
favor  puts  them  into  operation.  Neither  assembly  nor  governor 
has  a  voice  in  the  matter.  As  Oregon's  constitution  heretofore  has 
been  almost  impossible  of  amendment  because  of  the  difficulty  of 
its  requirements,  there  should  result  a  vigorous  application  of  the 
popular  initiative  so  as  to  remove  obsolete  provisions.  The  new 
method  has  already  been  used  effectively  to  bring  about  needed 
reforms,  and  its  adoption  by  other  states  during  the  next  few 
years  may  safely  be  prophesied. 

Bills  of  Rights.— AW  states  but  Michigan  contain  in  their  con- 
stitution formal  bills  of  rights.  Twenty-two  prefer  the  title 
Declaration  of  Rights,  but  twenty  use  the  other  form.  Michigan 
places  the  essential  provisions  of  the  formal  bill  under  their  proper 
headings,  such  as  Legislative  and  Judicial  Departments,  and  there- 
by sets  a  good  precedent.  Maryland  has  the  largest  number  of 
provisions,  forty-five.  Louisiana  has  the  fewest,  fifteen.  Twelve 
states  have  thirty  to  forty ;  twenty-one  have  twenty  to  thirty,  and 
ten  manage  to  get  along  with  less  than  twenty.  A  bill  of  rights 
properly  should  contain  only  broad  general  principles  in  regard  to 
the  purposes  and  spirit  of  government,  and  general  instructions 
and  prohibitions  declaring  the  fundamental  safeguards  for  life, 
liberty  and  property.  These  principles  of  liberty  and  democracy 
are  now  so  thoroughly  ingrained  in  our  legal  systems  as  hardly  to 

•For  the  last  decision  on  this  matter  see  Commonwealth  vs.  Griest.  196  Pa.  396 


22  The  Annals  of  the  American  Academy 

need  explicit  statement  in  a  constitution,  yet  the}^  will  doubtless  be 
long  retained  as  assurances  against  possible  legislative  tyranny  and 
as  mementos  of  former  struggles.  They  include  guaranties  of  life, 
liberty,  property,  and  happiness;  freedom  of  conscience,  speech, 
press,  petition,  and  assembly;  habeas  corpus,  open  courts,  a  fair 
trial  and  the  jury  in  cases  of  crime;  the  right  to  bear  arms,  to  hold 
free  elections,  and  to  "reform,  alter  or  abolish  forms  of  government ;" 
guaranties  against  unreasonable  search,  seizure,  imprisonment  or 
bail ;  and  provisions  in  regard  to  treason,  martial  law,  and  imprison- 
ment for  debt.  Evidently  such  provisions  as  these  are  well  worth 
preserving  in  our  fundamental  law.  On  the  other  hand  one  may 
question  whether  it  is  worth  while  to  retain  references  to  the 
exploded  theory  of  social  compact,  or  to  guaranty  the  right  of  emi- 
gration, or  to  insert  provisions  in  respect  to  lotteries,  lobbying, 
dueling,  pensions,  punishments,  social  status,  contempt  of  court, 
tenure  of  office,  and  the  rights  of  labor.  Such  matters  may  or 
may  not  deserve  place  in  our  constitutions,  but  surely  not  in  a  bill 
of  rights.  Again,  when  a  simple  right  of  earlier  days  becomes  com- 
plex, it  might  better  go  into  the  main  body  of  the  constitution  under 
its  appropriate  heading.  Trial  by  jury,  for  instance,  is  frequently 
modified  nowadays  by  waiving  it  altogether  in  certain  kinds  of 
cases,  or  by  changes  in  the  traditional  number  and  the  unanimous 
verdict.  Such  modifications  properly  belong  to  the  judicial 
department.  Again,  the  statement  that  "the  property  of  no  man 
shall  be  taken  for  public  use  without  just  compensation  therefor" 
(Connecticut),  is  simple  enough,  but  when  this  right  is  hedged  about 
with  numerous  explanatory  clauses^  it  might  better  be  transferred 
to  the  legislative  department. 

In  general  it  may  be  said  that  our  numerous  bills  contain  too 
many  provisions  of  doubtful  truth,  of  local  or  temporary  importance 
and  of  details  that  properly  belong  to  other  articles.  Many  of  the 
newer  provisions  found  in  some  bills  are  in  others  placed  under 
r^ore  appropriate  headings  in  the  constitution,  so  that  there  seems 
to  be  a  real  confusion  as  to  what  should  or  should  not  be  inserted. 
There  are  some  new  provisions  now  very  generally  inserted  in  the 
later  constitutions  that  are  important  enough  to  become  perma- 
nent additions  to  bills  of  rights.  Two  at  least  are  so  important 
that  a  convention  failing  to  insert  them  in  substance  somewhere 

'See  for  example  California,  sec.  14. 


Our  State  Constitutions  23 

in  the  constitution  should  be  considered  dereHct  in  its  dut>'.  Thir- 
teen constitutions  for  instance  read,  "No  money  shall  ever  be  taken 
from  the  public  treasury,  directly  or  indirectly,  in  aid  of  any  church, 
sect,  or  religious  denomination,  or  in  aid  of  any  sectarian  institu- 
tion," and  seven  insert  the  provision  that  "Every  grant  or  fran- 
chise, privilege  or  immunity,  shall  forever  remain  subject  to  revoca- 
tion, alteration,  or  amendment."^ 

There  are  two  provisions  rather  generally  inserted  in  bills  of 
rights  which,  though  not  so  essential  as  they  were  once,  yet 
deserve  place  for  historic  reasons  if  not  otherwise.  They  are  "The 
rights  enumerated  in  this  bill  of  rights  shall  not  be  construed  to 
limit  other  rights  of  the  people  not  therein  expressed,"  and  "The 
provisions  of  this  constitution  are  mandatory  and  prohibitory, 
unless  by  express  words  they  are  declared  to  be  otherwise."  In 
conclusion  of  this  topic  it  may  be  said  that  many  states  have  found 
the  substance  of  the  first  eight  amendments  to  the  national  con- 
stitution to  be  the  best  basis  for  their  own  bills  of  rights. 

'There  are  numerous  variations  of  these  two  provisions  in  different  articles  of  other  con- 
stitutions. 


CHAPTER  IV. 
Suffrage  and  Elections. 

Suffrage— Our  States  have  the  right  to  declare  in  their  con- 
stitutions who  shall  exercise  suffrage  within  their  several  jurisdic- 
tions. The  restrictions  on  this  power  in  the  national  constitution 
are  simple  and  few  in  number.^  Our  democratic  tendency  is  shown 
by  the  fact  that,  whereas  in  the  revolutionary  period  the  privilege 
of  suffrage  was  held  by  less  than  6  per  cent  of  the  population,  it  is 
now  held  by  about  20  per  cent.  The  per  cent  was  even  larger  in 
1870,  but  restrictions  have  since  crept  in.  These  several  restric- 
tions will  now  be  indicated  in  turn. 

It  was  once  common  in  thinly  settled  states  to  allow  aliens 
who  had  taken  out  their  first  naturalization  papers  to  vote  even 
in  national  elections.  Nine  states  only  still  retain  this  provision;* 
six  have  changed  within  the  last  ten  years.'  Some  of  the  nine 
would  likely  change  if  their  constitutions  could  be  amended  with 
ease,  for  the  tendency  is  to  reserve  suffrage  privileges  for  full- 
fledged  Americans  only. 

An  educational  qualification  is  rapidly  passing  into  our  con- 
stitutions through  a  belief  that  voters  should  be  intelligent,  and 
that  this  on  the  whole  is  best  indicated  by  the  abihty  to  read  and 
write.  Such  a  restriction  of  course  would  be  undemocratic  if  not 
coupled  with  provisions  for  a  free  and  general  education.  Fourteen 
states  now  have  educational  restrictions,  and  these  should  be  con- 
sidered in  two  sets.  Eight  states  compose  the  first  set;*  two 
require  ability  to  read  EngHsh  (Connecticut  and  Wyoming); 
one  to  read  and  speak  EngHsh  (Washington),  and  the  other  five  to 
read  English  and  write  the  name.  The  other  set^  consists  of  six 
southern  states  which  have  an  educational  qualification  as  one  of 
several  alternatives.     The  details  to  these  are  too  numerous  to 

'Art.  I,  sec.  2 ;  Art.  IV,  sec.  2 ;  Amendment  XIV,  sec,  1 ;  Amendment  XV. 

'Arkansas,  South  Dakota,  Indiana,  Texas,  Kansas,  Missouri,  Nebraska,  Oregon,  Wiscon- 
sin. 

'Florida,  Michigan,  Minnesota,  Alabama,  Colorado,  North  Dakota. 

'Connecticut,  1855  and  1897;  Massachusetts,  1857;  Wyoming,  18S9;  Maine,  1R93:  Cali- 
fornia, 1804;  Washington,  1896;  Delaware,  1897;  New  Hampshire,  1903. 

•Mississippi,  1890;  South  Carolina,  1895;  Louisiana,  1898;  Alabama,  i go i ;  Virginia,  1902; 
North  Carolina,  1902. 

(24) 


Our  State  Constitutions  25 

specify,  but,  with  the  exception  of  Mississippi,  which  requires  the 
abihty  to  read  or  understand,  all  require  the  ability  to  read  and 
write,  Louisiana  making  the  proviso  that  it  may  be  in  Enghsh  or 
in  the  mother  tongue. 

The  chief  restriction  on  suffrage  in  earlier  days  was  the  prop- 
erty quahfication.  This  still  survives  in  many  states  in  the  form 
that  referenda  involving  the  expenditure  of  money  shall  be  voted 
on  by  taxpayers  only.  Aside  from  this,  the  property  quahfication 
by  1890  had  entirely  disappeared  from  the  United  States  except 
in  Rhode  Island,  where  there  is  a  property  requirement  of  one 
hundred  and  thirty -four  dollars  for  suffrage  in  the  election  of  mem- 
bers of  city  councils.  Five  constitutions  in  their  bills  of  right  form- 
ally state  their  objection  in  declaring  that  the  holding  of  property 
should  not  be  considered  as  affecting  the  right  to  vote  and  hold 
office.  Since  1895  several  of  the  southern  states  have  introduced 
this  restriction  as  one  of  the  alternatives  for  suffrage.  It  was 
inserted  as  a  temporary  requirement  by  Virginia  in  1902  and  is  a 
permanent  requirement  in  the  constitutions  of  South  Carolina, 
Louisiana  and  Alabama.  The  qualification  is  the  possession  of 
property  valued  at  the  minimum  of  three  hundred  dollars.  Those 
interested  in  the  famous  temporary  provisions  in  certain  southern 
constitutions  intended  to  disfranchise  the  negroes,  should  consult 
the  suffrage  articles  of  Louisiana  and  North  Carolina  for  the 
"grandfather"  clause,  and  of  Alabama  and  Virginia  for  the  "old 
soldier"  clause.  An  amendment  relating  to  suffrage  including  a 
"grandfather"  clause  was  rejected  November,  1905,  by  Maryland.' 

As  women  are  citizens  and  all  citizens  by  theory  are  entitled 
to  the  same  privileges,  women  are  entitled  to  the  suffrage  equally 
with  men  unless  the  constitution  is  worded  or  can  be  interpreted 
otherwise.  Definite  agitation  for  women's  suffrage  has  been 
carried  on  since  1848,  but  in  state  elections  small  progress  has  been 
made.  Four  states  at  the  present  time  allow  women  full  suffrage.^ 
Referenda  on  the  question  have  been  rejected  during  the  last  few 
vears  (i 894-1 903)  by  six  states.*  It  is  much  more  common 
(twenty-four  states)  to  allow  women  suffrage  in  school  and  occa- 

«See  also  article    on  Negro  Suffrage,  by  John  C.  Rose,  Am.  Political  Science    Review, 

Nov.,  1906. 

'Wyoming,  1889;  Colorado,  1S93;  Utah,  1895;  Idaho  1896. 

•Kansas,  California,  Washington,  South  Dakota,  Oregon,  New  Hampshire. 


26  The  Annals  of  the  American  Academy 

sionally  in  library  matters.^  Kansas  in  1886  granted  women 
municipal  suffrage,  and  Montana,  Iowa,  and  Louisiana  by  con- 
stitution allow  women  taxpayers  to  vote  on  certain  referenda 
involving  expenditures.  It  is  on  the  whole  expedient  for  conven- 
tions in  considering  suffrage,  to  decide  what  privileges,  if  any, 
women  are  to  have,  and  then  to  state  them  in  express  terms. 

Registration  is  now  a  common  form  of  restriction.  The 
former  prejudice  against  it  may  still  be  found  in  the  constitution 
of  Arkansas  which  declares  that  registration  shall  not  be  a  pre- 
requisite for  voting.  This  is  the  only  state  retaining  the  provision, 
as  Pennsylvania  removed  it  in  1901  and  West  Virginia  in  1902. 
About  twenty  constitutions  expressly  authorize  registration, 
though  legislatures  could  probably  pass  such  laws  under  their 
general  powers  unless  restrained  by  some  provision  in  their  con- 
stitutions. The  restrictive  feature  in  registration  is  that  the  person 
who  claims  for  himself  the  privilege  of  suffrage  may  be  required  to 
present  himself  in  person,  by  a  certain  date,  and  prove  his  right. 
The  necessity  of  a  personal  application  will  invariably  disfranchise 
a  large  per  cent  of  the  voters,  who  will  neglect  to  make  application. 
This  will  prove  to  be  especially  true  if  the  date  set  is  several  months 
before  an  election.  The  excitement  of  a  campaign  would  bring  out 
many  who  otherwise  will  fail  to  register  if  the  date  set  is  early  in 
election  year.  If  the  proof  involves  the  presentation  of  naturaliza- 
tion papers  or  tax  receipts  it  may  be  assumed  that  another  large 
per  cent  of  voters  will  fail  to  appear.  If  all  these  requirements 
are  found,  viz.,  personal  application,  a  long  time  before  an  election, 
and  prepayment  of  taxes  or  other  proof,  the  list  of  voters  may  easily 
be  cut  in  half.  Add  an  educational  or  property  qualification,  and 
the  task  of  counting  voters  will  be  reduced  to  a  minimum.  Space 
will  not  allow  further  details,  but  a  study  of  the  constitutions  of 
the  six  southern  states  already  referred  to,*"  and  a  comparison  of 
the  votes  cast  in  those  states  before  and  after  the  passage  of  such 
laws,  will  abundantly  illustrate  the  utility  of  rigid  registration  laws 
as  a  means  of  restriction.  These  same  southern  constitutions  will 
furnish  illustrations  of  that  other  form  of  registration,  in  which  the 
name  of  the  person  once  registered  is  retained  on  the  lists  for  life 
or  for  a  specified  term  of  years,  the  lists  being  corrected  annually 

'Sec  for  example  the  constitutions  of  Washington,  North  Dakota,  South  Dakota,  Idaho, 
Montana,  Minnesota. 

'"In  the  third  paragraph  of  this  chapter. 


Our  State  Constitutions  27 

or  biennially  by  the  several  boards  of  registration.  It  must  not, 
of  course,  be  understood  that  registration  is  merely  a  means  of 
restriction.  It  is  intended  fundamentally  as  a  safeguard  against 
illegal  voting,  but  it  is  clearly  evident  that  it  can  be  used  to  cut 
down  considerably  the  number  of  voters. 

Besides  these  restrictions  there  are  in  practically  all  con- 
stitutions prohibitions  of  suffrage  to  minors  under  twenty-one 
3'ears  of  age,  to  idiots,  insane  persons,  and  persons  convicted  of 
crime.  Some  specify  crimes  in  elections  and  dueling.  This  last 
of  course  would  be  a  bill  of  attainder  unless  dueling  were  a  crime 
by  statute  and  conviction  had  taken  place.  There  is  also  always  a 
restriction  in  the  form  of  a  requirement  of  residence  within  the 
state,  county  and  precinct.  In  the  forty-five  states  there  are 
twenty-five  variations  in  the  times  set !  On  the  whole  it  may  be 
said  that  the  average  preference  is  one  year's  residence  in  the  state 
(twenty-six  states),  six  or  three  months  in  the  county,  and  thirty 
days  in  the  precinct.  Seven  states  require  a  two  years*  residence, 
and  eleven  states  six  months.  The  constitutions  also  regularly 
contain  a  provision  defining  under  what  conditions  a  residence  is 
neither  gained  nor  lost."  The  prepayment  of  taxes,  property  or 
poll,  as  a  form  of  restriction  has  already  been  mentioned.  It  exists 
in  a  very  few  states.  For  examples,  see  Delaware,  Pennsylvania, 
Tennessee  and  Texas  (amendment  1902),  in  addition  to  the  six 
southern  states  mentioned  in  the  third  paragraph  of  this  article. 
The  most  stringent  requirements  will  be  found  in  the  constitutions 
of  Mississippi,  Louisiana  and  Virginia. 

Electio)is  and  Political  Parties. — Thirteen  of  the  constitutions 
include  elections  along  with  suffrage,  under  some  common  title, 
such  as  Suffrage  and  Elections.  Two  (Rhode  Island  and  Kansas) 
have  separate  articles  for  each  subject  and  the  others  as  a  rule 
scatter  provisions  regarding  elections  throughout  the  constitutions. 
It  would  add  to  clearness  if  all  provisions  in  regard  to  elections  and 
political  parties  were  placed  together  under  some  ap])ropriate 
heading,  especially  as  unusual  attention  is  being  paid  to  such 
matters  at  present. 

As  congress  in  1871  provided  that  elections  for  members  of 
the  house  of  representatives  should  take  place  in  even  years,  on 
Tuesday  after  the  first  Monday  in  November,  states  have  tended 

"For  example  see  California,  II,  4. 


28  The  Annals  of  the  American  Academy 

to  place  their  own  elections  on  the  same  day  so  as  to  avoid  duplica- 
tion of  expense  and  work.  Four  states,  however,  still  prefer  to  use 
the  odd  years,"  so  as  to  separate  state  from  national  issues.  The 
last  to  change  from  odd  to  even  were  Iowa  in  1904  and  Ohio  1905. 
Eight  states  still  hold  their  general  elections  in  months  other  than 
November,  and  three  of  these  by  special  arrangement  hold  the 
national  election  at  the  same  time  (Oregon  first  Tuesday,  June; 
Vermont  first  Tuesday,  September;  and  Maine  second  Monday, 
September).  Two  states  still  retain  the  old-fashioned  annual 
general  election  (Massachusetts,  Rhode  Island).  New  York  and 
New  Jersey  elect  their  lower  houses  annually ;  three  of  the  newer 
constitutions  (Alabama,  Louisiana,  Mississippi)  provide  for  a 
quadrennial  election,  and  all  the  other  constitutions  provide  for 
an  election  biennially. 

A  system  of  registration  for  voters  (already  discussed),  a 
system  of  nomination,  including  the  primary;  the  election, 
including  the  form  and  method  of  voting;  and  the  count, 
are  all  matters  that  properly  fall  under  the  jurisdiction  of  the 
state  and  may  be  mentioned  in  the  constitution  or  more 
properly  left  to  statutory  regulation.  The  chief  requirement 
found  in  constitutions  (in  about  thirty)  is  that  voting  be  by 
ballot.  Others  authorize  it  by  law.  Congress  also  makes  this 
requirement  for  national  elections.  Since  the  introduction  of  the 
Australian  ballot  system  there  is  a  tendency  to  say  Secret  ballot 
(nine  states).  As  the  voting  machine  is  not  a  ballot,  states  desirous 
of  using  this  mechanism,  yet  having  a  ballot  requirement,  must 
add  an  amendment  specifying  a  voting  machine  or  some  other 
device  "provided  that  secrecy  in  voting  be  preserved."*'  A  few 
states  (five)  require  that  the  ballots  be  numbered  and  a  few  others 
require  that  the  ballot  include  the  party  emblem  (for  example 
Louisiana)  or  on  the  other  hand  arrange  candidates  alphabetically 
(Virginia,  Wyoming).  There  are  very  few  constitutional  provi- 
sions in  regard  to  the  primary  and  the  count,  such  matters  are 
regularly  left  to  legislatures. 

Nearly  all  constitutions  contain  some  provision  against  fraud 

i^Kentucky,  Maryland,  Mississippi,  Virginia. 

*^See  for  example  Utah,  New  York,  Virginia;  and  recent  amendments  to  constitution*  of 
Pennsylvania,  Connecticut,  and  California. 


Otir  State  Constitutions  29 

and  bribery,  but  legislative  ingenuity  has  not  yet  succeeded  in 
making  a  really  effective  "Corrupt  Practices"  act." 

Political  parties  are  voluntary  associations  and  not  part  of  the 
state's  electional  machinery.  The  state  under  its  police  powers 
has  the  right  to  regulate  them  but  should  not  make  the  blunder  of 
assuming  that  political  parties  represent  all  voters.  If  a  legis- 
lature for  instance  regulates  the  party  primary  or  the  party  ballot, 
it  must  arrange  that  independents  also  be  able  to  express  their 
choice  in  nomination  and  on  the  official  ballot.  Any  departure 
from  this  principle  must  be  expressly  specified  in  the  constitution 
or  run  the  risk  of  being  declared  unconstitutional.^^ 

So  far  as  constitutions  are  concerned  there  is  very  little 
attempt  to  regulate  party  organization,  such  matters  being  left  to 
statute.  Louisiana  in  articles  200  and  215  gives  the  gist  of  what 
few  provisions  may  be  found  in  other  constitutions. 

'*See  Kentucky,  Delaware,  Maryland  for  illustrations  of  constitutional  provisions. 

I'For  recent  cases  bearing  on  this  point,  see  Spier  vs.  Baker,  s^  P-  659;  Britton  vs.  Board  of 
Election  Commissioners,  61  P.  1115,  and  amendment  to  constitution  of  California  regarding 
primaries  adopted  1900. 


CHAPTER  V. 

The  Executive  Department. 

One  of  our  favorite  political  theories  is  that  of  the  separation 
of  powers.  The  several  powers  of  government  are  grouped  under 
three  main  heads  and  each  kind  placed  in  charge  of  a  distinct  set  of 
officials.  In  practice  these  divisions  can  not  be  entirely  separate, 
and  a  system  of  "checks  and  balances"  is  used  so  as  to  co-ordinate 
and  unify  the  work  of  government.  Executive  powers  properly 
include  the  war  and  treaty  power,  the  power  of  oversight,  under 
which  is  placed  the  veto  power,  and  the  power  of  appointment  and 
supervision  over  the  administrative  departments. 

One  of  the  chief  defects  in  our  present  state  constitutions  is  that 
these  executive  powers  have  not  received  proper  attention.  The 
theory  of  separation  has  been  disregarded  and  the  legislature  has 
been  allowed  to  share  these  powers  with  the  executive,  with 
disastrous  results.  There  is  at  present  a  strong  centralizing 
tendency  in  economic  and  political  life,  and  one  effect  from  this  is 
increased  attention  to  the  proper  place  of  the  executive  in  govern- 
ment. This  is  plainly  indicated  by  a  comparison  of  the  articles 
entitled  "The  Executive  Department." 

The  requirements  for  the  office  of  governor  are  practically 
the  same  in  all  the  states.  The  governor  must  be  at  least  thirty 
years  of  age  (four  states  require  twenty-five  or  thirty-five  years), 
a  citizen  of  the  United  States  for  a  period  varying  from  five  to 
twenty  years  (Maine  requires  that  he  be  native  born),  and  a 
resident  of  the  state  for  a  period  of  from  one  to  ten  years.  If  the 
election  results  in  a  tie,  the  procedure  is  the  same  in  almost  all  the 
states,  viz.,  the  legislature  in  joint  session  selects  a  governor  from 
the  leading  candidates.  The  usual  procedure  is  modified  somewhat 
in  five  states.^ 

A  few  states  specify  his  salary  in  the  constitution ,  others  do  so 
but  authorize  the  legislature  to  change  it,  and  the  remaining  states 
wisely  leave  the  matter  to  the  discretion  of  the  lawmaking  body. 
In  passing,  it  may  be  said  that  the  increase  in  the  cost  of  living  with 

iMaine,  Massachusetts,  Vermont,  Georgia  and  Mississippi ;  this  last  state  elects  its  governor 
through  an  electoral  college. 

(30) 


Our  Stale  Constitutions  31 

other  reasons,  is  resulting  in  a  steady  increase  in  salaries  paid  to 
state  officials.  Twenty  states  now  pay  the  governor  five  thousand 
dollars  or  more,  and  only  five  states  pay  two  thousand  dollars  or 
less.  Fifteen  states  place  restrictions  on  a  governor's  re-election, 
the  usual  form  being  a  prohibition  against  two  successive  terms; 
three  states  forbid  him  to  be  a  candidate  for  the  United  States 
senate  while  in  office  (Alabama,  CaHfomia,  Utah),  and  New  Jersey 
forbids  its  legislature  to  elect  him  to  any  other  office  "during  the 
term  for  which  he  shall  have  been  elected  governor."  Nearly  all 
forbid  a  state  officer  to  hold  a  position  of  trust  under  the  federal 
government  and  should  forbid  him  to  hold  more  than  one  office 
within  the  state.      (See  Florida,  Art.  XVI,  15.) 

The  term  of  office  is  four  years  in  twenty-one  states,  two  years 
in  the  same  number  of  states,  three  years  in  New  Jersey  and  one 
year  in  Massachusetts  and  Rhode  Island.  The  tendency  is  toward 
the  longer  term,  not  away  from  it, 

The  governor  has  certain  routine  duties  common  to  all  states; 
he  represents  his  commonwealth  in  its  deahngs  with  other  states, 
he  may  summon  the  legislature  in  special  session  or  adjourn  it  in 
case  of  disagreement,  he  "must  take  C£ire  that  the  laws  be  faithfully 
executed,"  may  commission  officers  and  fill  vacancies  pro  tempore, 
and  is  the  commander  of  the  military  and  naval  forces  of  the  state. ^ 
He  regularly  has  large  powers  in  pardoning,  which  he  exercises  on 
his  own  authority  or  partly  in  connection  with  the  legislature  or 
senate  (twenty-nine  states)  or  by  the  aid  of  a  board  (thirteen)  or 
council  (three.)  He  regularly  has  the  power  to  make  formal 
recommendations  to  the  legislature,  and  may  request  information 
under  oath,  or  opinions  in  writing,  from  the  several  officers  of 
administration.  Aside  from  these  usual  powers,  which  require  no 
special  mention,  attention  must  be  given  to  (a)  the  veto  power 
and  (6)  his  power  in  administration. 

The  Veto  Power. — In  1788  two  states  only  (Massachusetts, 
New  York)  gave  the  veto  power  to  the  governor;  in  1906  North 
Carolina  and  Rhode  Island  alone  withhold  it.  The  need  of  an 
efficient  check  on  legislation  simply  compelled  the  change.  In  the 
national  constitution,  a  veto  is  overridden  by  a  two-thirds  vote  of 

^Twenty-six,  even  some  of  the  inland  states,  mention  navy;  Massachusetts  and  New  Hamp- 
shire have  similar  quite  thrilling  and  sanguinary  paragraphs  on  the  war  powers  of  their  govern- 
ors as  commanders-in-chief  and  admirals  of  the  respective  forces  of  their  states. 


32  The  Annals  of  the  American  Academy 

both  houses  of  congress;  this  fraction  is  preferred  by  thirty-one 
states,  but  nine^  specify  a  majority,  and  three  a  three-fifths  vote.* 
This  vote  must  be  by  yea  and  nay  and  recorded.  Taking  warning 
trom  experience,  thirty  states  now  allow  the  governor  to  veto 
items  of  appropriation  bills^  and  three  of  these  also  allow  him  to 
veto  part  or  parts  of  any  bill.' 

The  time  given  to  the  governor  for  the  consideration  of  a  bill 
varies  from  three  to  ten  days,  twenty  preferring  five  days,  eleven 
ten  days  and  the  others  three  or  six  days.  If  adjournment  inter- 
venes between  the  sending  of  a  bill  to  the  governor  and  its  return 
approved  or  vetoed,  twenty-two  constitutions  declare  the  bill 
passed  and  seventeen  declare  it  not  passed.  Ten  states^  allow  the 
governor  a  period  of  from  three  to  thirty  days  to  decide  whether  or 
not  to  approve  such  bills;  eighteen  states'  allow  him  from  five  to 
thirty  days  to  file  objections  with  the  secretary  of  state,  if  he 
desires;  and  nine  states'  require  that  such  bills  with  objections  be 
referred  to  the  next  legislature  for  its  consideration. 

The  constitutions  seem  to  be  in  doubt  whether  to  consider  the 
veto  as  executive  or  legislative  in  kind;  thirty  prefer  to  place  it 
under  the  executive  department  and  twelve  follow  the  national  con- 
stitution in  classifying  it  under  legislative.  Vermont  has  it  among 
the  amendments,  and  two  states,  as  already  said,  allow  no  veto. 

This  power  of  veto  lodged  in  the  executive,  especially  when 
coupled  with  the  power  to  veto  items  and  to  approve  or  disapprove 
after  adjournment,  has  become  a  most  effective  restraint  on  legis- 
lative action,  and  has  been  vigorously  used  to  enlarge  executive 
powers  and  to  conserve  public  interests. 

Administration. — The  power  of  the  executive  over  adminis- 
tration has  during  the  course  of  our  national  history  undergone 

'Alabama,  Arkansas,  Connecticut,  Indiana,  Kentucky.  New  Jersey,  Tennessee,  Vermont, 
West  Virginia. 

'Delaware,  Maryland,  Nebraska. 

'The  thirteen  states  not  yet  granting  this  power  are  Connecticut,  Florida,  Indiana,  Iowa, 
Maine,  Massachusetts,  Michigan,  Nevada,  New  Hampshire,  Oregon,  Tennessee,  Vermont,  Wis- 
consin,   all    old   constitutions. 

•Washington,  Virginia,  Ohio. 

^Alabama,  California,  Delaware,  Iowa,  Michigan,  Minnesota,  Missouri,  Montana,  New  York, 
Virginia. 

•Arkansas,  Colorado,  Florida,  Idaho,  Illinois,  Indiana,  Kentucky,  Nebraska,  Nevada,  North 
Dakota,  Ohio,  Oregon,  Pennsylvania,  South  Dakota,  Utah,  Washington,  West  Virginia,  Wyom- 
ing. 

•Florida,  Indiana,  Maine.  Mississippi.  Nevada.  Ohio,  Oregon,  South  Carolina,  Washing- 
ton. 


Our  State  Constitutions  33 

some  remarkable  changes.  This  power  was  in  the  early  constitu- 
tions deplorably  weak,  since  in  those  days  legislatures  controlled 
administration  also.  The  present  constitution  of  Rhode  Island  is 
an  excellent  illustration  of  this  old-fashioned  type.  As  govern- 
mental business  multipHed  through  the  growth  of  population  and 
wealth,  legislatures  tried  to  handle  these  increasing  duties,  first, 
through  committees,  temporary  and  then  permanent,  and  finally 
through  the  organization  of  departments,  boards  and  commissions. 
Most  of  our  states  are  still  in  this  stage  of  development.  Every 
new  line  of  activity  results  in  the  formation  of  a  special  board  or 
commission  until  these  can  be  counted  by  the  score  in  almost  any 
state,  a  joy  to  the  spoils  politician,  but  the  despair  of  every  tax- 
payer. Under  such  conditions  the  administration  of  the  state 
becomes  unwieldy,  wasteful,  and  thoroughly  unbusinesslike. 
Each  department,  board,  or  commission  drifts  along  vinder  the 
nominal  control  of  the  legislature,  united  only  by  the  bond  of  a 
common  affection  for  the  state  treasury. 

This  evil  has  for  some  time  attracted  the  attention  of  the 
leaders  in  our  several  states,  and  the  remedies  devised  by  them  are 
already  working  their  wa}^  into  the  newer  constitutions.  The  sub- 
stance of  these  changes  is  that  administrative  power  is  taken  from 
the  legislature  and  transferred  partly  to  the  electorate  but  chiefly 
to  the  executive,  where  it  properly  belongs.  The  methods  by 
which  this  has  been  done  will  now  briefly  be  indicated. 

Attention  has  already  been  called  to  the  tendency  toward  a 
four-year  term  and  a  larger  salary  for  governors.  The  same  point 
holds  true  in  respect  to  the  heads  of  the  important  departments. 
Their  terms  are  lengthening  and  their  salaries  increasing.  In  the 
case  of  the  treasurer  (fourteen  states)  and  auditor  or  comptroller 
(three  states)  there  is  the  same  provision  against  re-election  for 
successive  terms.  Heads  of  departments,  instead  of  being  elected 
by  legislatures  as  formerly,  are  now  almost  invariably  elected  by 
the  people.  In  a  very  few  states^"  one  or  several  of  these  heads  are 
still  chosen  by  legislatures,  and  by  contrast  in  a  few  states"  the 
governor  has  that  privilege,  but  the  movement  sets  steadily  in  the 
direction  of  popular  election.  Again,  constitutions  regularly 
specify  what  departments  must  be  organized,  and  what  powers  they 

'"For  examples  see  Maine,  New  Jersey,  South  Carolina,  Tennessee,  Virginia. 
"See  Delaware,  Maryland,  New  Jersey,  New  York,  Pennsylvania,  Texas. 


34  '^/'^  Annals  of  the  Aincrlca)i  Academy 

may  exercise.  These  offices  in  almost  all  states  include  a  secre- 
tary of  state,  a  treasurer,  an  auditor  or  comptroller,  an  attorney 
general  and  a  superintendent  of  public  instruction.  Another 
department  is  common  enough,  though  going  under  widely  varying 
names.  Its  duties  in  general  are  indicated  by  the  term  Internal 
Affairs  (Pennsylvania).  Besides  these  departments  many  con- 
stitutions name  and  define  the  powers  of  numerous  boards,  com- 
missions, or  bureaus,  intended  chiefly  for  purposes  of  general  wel- 
fare, and  for  supervision  of  the  larger  economic  interests  of  the 
state. 

Conventions  by  thus  placing  such  inatters  in  the  constitution 
have  deprived  legislatures  of  the  power  of  altering  them,  and  to 
that  extent  have  developed  an  administration  apart  from  the  law- 
making body. 

The  next  development  is  to  require  these  several  departments 
and  officials  to  report  semi-annually  to  the  governor ;  to  make  him 
ex-officio  member  of  the  several  commissions  (Utah  for  example) ; 
to  authorize  him  to  investigate  thoroughly  any  department  or 
office  at  his  discretion, ^^  especially  those  handling  the  finances  of 
the  State, ^^  and  to  place  in  his  hands  the  power  to  suspend  or 
remove  those  officers  who  seem  to  be  derelict  in  their  duties." 
A  few  (nine)  add  to  such  powers  the  duty  of  presenting  to  the 
legislature  at  the  beginning  of  each  session  the  budget  of  anticipated 
receipts  and  expenditures.  There  is  also  a  strong  tendency  to 
define  more  generously  his  power  in  removal  and  to  increase  his 
power  of  appointment  in  the  case  of  officials  other  than  heads  of 
departments.  This  power  he  regularly  exercises  by  and  with  the 
advice  and  consent  of  the  senate,  though  the  wisdom  of  this  require- 
ment may  be  questioned.  It  is  impossible  to  specify  these  details 
by  states  in  so  short  a  space  but  a  comparative  study  would  show 
great  differences  in  the  extent  of  executive  power.  Compare,  for 
exainple,  some  of  the  newer  constitutions  such  as  those  of  Alabama, 
Idaho,  Montana,  New  York,  Utah  and  Wyoming;  and  an  older 
set,  such  as  those  of  Colorado,  Maryland,  Missouri,  Texas  and  West 
Virginia;  and  a  still  older  set,  such  as  those  of  Iowa,  Oregon  and 
Wisconsin;  and  finally  the  New  England  set  as  an  awfvil  example 
of  what  not  to  do. 

'-For  illustrations  of  this  see  Idaho,  Montana,  Utah,  Wyoming. 

"For  curious  provisions  see  Georgia,  Kentucky,  Maryland,  and  Mississippi. 

i*See  for  example  Michigan,  xii,  8. 


Our  State  Constitutions  35 

The  reason  for  the  longer  term  and  larger  salary  of  the  modern 
governor  is  now  obvious.  His  duties  are  so  onerous  that  he  must 
be  adequately  paid  and  time  be  given  him  to  show  his  capacity  as 
head  of  the  administration.  By  centralizing  administrative 
responsibility  on  his  shoulders  his  office  becomes  powerful,  com- 
mands respect  and  is  eagerly  sought  after  by  capable  men.  It 
becomes  also  a  prize  in  party  politics  and  for  that  reason  should  be 
supplemented  by  an  adequate  civil  service  law  modeled  after  one 
of  the  rival  systems  of  either  Massachusetts  or  New  York."  In 
short,  the  loosely  co-ordinated  administrative  system  of  the  revo- 
lutionary period  is  at  last  disappearing,  and  in  its  place  the  states 
are  centralizing  administrative  powers  into  the  governor's  hands, 
as  in  the  national  system. 

Future  conventions  will  likely  pay  much  more  attention  to 
the  proper  organization  of  the  administration,  which  should  be 
arranged  in  a  separate  article  apart  from  the  executive.  A  begin- 
ning in  this  direction  already  has  been  made  in  eight  constitutions," 
but  imperfectly,  as  these  were  prepared  before  present  evils  had 
fully  developed. 

A  check  should  be  put  on  so  rapid  a  multiplication  of  semi- 
independent  boards,  bureaus,  and  commissions.  Some  are  useless 
and  others  could  be  consolidated.  By  centering  responsibility  in 
the  governor,  efficiency  and  economy  become  possible,  and  his 
hands  should  be  strengthened  against  party  demands  by  the  merit 
system  of  appointment  and  tenure. 

Thirty-two  of  the  states  have  lieutenant  governors,  and 
thirty  of  these  make  that  officer  president  of  the  senate.  In  the 
other  thirteen  states"  and  in  Massachusetts  the  senate  elects  its 
own  presiding  officer,  and  the  constitution  arranges  the  order  of 
succession  in  case  of  the  death  or  disability  of  the  governor.  An 
elaborate  paragraph  on  succession  may  be  found  in  the  new 
Alabama  constitution.  Three  of  the  New  England  states  still 
retain  the  old-fashioned  executive  council  (Massachusetts,  Maine, 
New  Hampshire),  and  a  modification  of  it  may  be  found  in  North 
Carolina.  Though  not  provided  for  by  constitution,  Iowa  has  an 
executive  council  and  possibly  other  states  also  by  custom  or  statute. 

"See  Article  V,  sec.  g,  New  York  constitution. 

i*See  Article  VI,  Indiana,  Wisconsin,  Oregon;  Georgia,  Article  V,  sec.  II;  Colorado,  Article 
XII;  New  Jersey,  Article  VII;  Michigan,  Article  VIII,  and  Tennessee,  Article  VII. 

'^\rkansas,  Florida,  Georgia,  Maine,  Maryland,  Mississippi,  New  Hampshire,  New  Jersey, 
Oregon,  Tennessee,  Utah,  West  Virginia,  Wyoming. 


CHAPTER  VI. 
The  Judicial  Department. 

The  judiciary  is  the  department  of  our  government  which,  up 
to  recent  years,  has  undergone  fewest  changes  and  given  most  satis- 
faction. The  touching  confidence  of  old-time  constitution  makers 
in  the  wisdom  and  integrity  of  legislator  and  judge,  may  still  be 
seen  in  the  constitutions  of  the  New  England  states,  which  dispose 
of  the  subject  of  judicial  organization  in  few  words,  leaving  it 
almost  entirely  to  the  discretion  of  the  lawmakers.  Contrast  these 
with  recent  constitutions  and  the  difference  is  marked.  One  of  the 
chief  sins  of  the  Louisiana  constitution  is  that  it  devotes  about 
twelve  thousand  words  to  the  courts  of  the  state  and  of  the  city 
and  parish  of  New  Orleans.  It  is  really  a  statute  under  the  form 
of  a  constitutional  article,  and  yet  can  be  amended  only  by  a  slow 
and  tedious  process.  But,  though  the  chief  of  sinners  in  this  res- 
pect, Louisiana  is  not  alone  in  this  tendency.  The  rapid  multipli- 
cation of  population  and  wealth,  our  democratic  fondness  for  liti- 
gation and  lawmaking,  with  social  unrest  thrown  in  as  a  disturber 
of  the  peace,  all  compel  movements  for  the  reorganization  of  the 
judiciary.  The  effect  of  this  is  seen  in  the  addition  to  our  consti- 
tutions of  numerous  pages  devoted  to  the  judicial  department ;  for 
conventions,  filled  with  distrust  of  legislatures,  realize  that  a  judicial 
system  with  organization  and  functions  defined  by  constitution  is 
beyond  the  power  and  control  of  the  lawmaking  body. 

The  American  standard  of  judicial  organization  is  a  three- 
grade  system  of  courts,  consisting  of  a  supreme  court,  an  interme- 
diate court  usually  known  as  a  circuit,  district  or  county  court, 
and  courts  of  the  justices  of  the  peace.  The  jurisdiction  of  the 
judges  of  the  highest  sets  of  courts  regularly  extends  to  all  parts  of 
the  state,  even  though  in  some  cases  they  are  elected  by  districts. 

The  supreme  court  is  regularly  a  court  of  appeals,  usually, 
if  at  all,  having  original  jurisdiction  only  in  the  issuance  of  pre- 
rogative writs ;  this  power  it  regularly  shares  with  the  courts  next 
lower  in  grade.     A  few  states  add  other  original  jtirisdiction.^     In 

»For  example,  California,  Illinois,  Indiana,  Nebraska.  North  Carolina,  Pennsylvania  and 
some  of  the  New  England  states. 

{36) 


Our  State  Constitutions  37 

some  states  the  supreme  court  is  called  the  court  of  appeals,^ 
confusion  arises  when,  as  in  New  York,  the  supreme 
court  is  not  a  supreme  but  a  district  court.  In  Texas  the  supreme 
court  has  a  separate  organization  for  civil  and  for  criminal  business. 
Rapid  increase  of  judicial  business  in  many  of  our  states  during 
the  last  thirty  years  has  burdened  their  supreme  courts  beyond 
reason.  A  temporary  makeshift  in  use  is  to  authorize  a  supreme 
court  commission,  so  as  to  enable  the  court  to  catch  up  with  its 
cases.  In  recent  years  this  has  been  done  by  Cahfornia,  Florida, 
Montana  and  Nebraska.  In  New  York  (amendment  1899)  not 
more  than  four  justices  of  the  supreme  (district)  court  may  be 
designated  by  the  governor  to  serve  temporarily  as  associate 
justices  of  the  court  of  appeals.  Another  possibility  is  to  organize 
a  system  of  intermediate  courts  of  appeal.'  This  additional  grade, 
in  cases  when  decisions  are  conflicting  may  add  to  the  expense  and 
time  of  litigation,  hence  there  arises  the  system  of  increasing  the 
number  of  judges  and  allowing  these  to  sit  in  two  or  more  divisions, 
and  01  banc  only  when  necessary  to  settle  disputes  or  in  especially 
important  jurisdiction.  Those  constitutions  that  failed  to  include 
some  such  provision  for  the  relief  of  the  supreme  court  are  rapidly 
placing  it  in  their  constitutions  by  amendment.'*  Wisconsin  has 
had  to  change  the  organization  of  its  supreme  court  three  times  by 
amendment  to  constitution;  in  1877,  1889,  1903.  Still  another 
possibility  is  shown  in  New  Hampshire  (190 1)  and  Rhode  Island 
(1903)  which  have  organized  each  a  superior  court,  having  part  of 
the  jurisdiction  formerly  confided  to  the  supreme  court. 

In  view  of  this  national  tendency,  it  would  be  well  if  all  con- 
stitutions hereafter  would  provide  an  adequate  system  for  appellate 
jurisdiction,  or  leave  to  the  legislature  some  discretion  in  respect 
to  the  organization  of  the  supreme  court . 

Little  needs  to  be  said  in  regard  to  the  other  grades  of  court. 
There  are  wide  differences  in  organization,  and  much  is  left  to  legis- 
latures. There  is  little  uniformity  in  name  and  many  differences 
in  jurisdiction.  Information  on  such  matters  therefore,  must  be 
sought  from  the  constitutions  and  statutes  themselves  or  from 
some  text  book  on  the  subject. 

'For  example  in  Kentucky,  Maryland,  New  Jersey,  New  York. 

»For  example  in  Illinois,  Indiana,  Louisiana,  Missouri,  New  York,  Pennsylvania,  Tennessee, 
Texas,  and  California  in  1904. 

*See  for  example  Kansas,  1900;  Florida,  1903;  Colorado,  1904;  Alabama,  1904  . 


38  The  Annals  of  the  American  Academy 

Tcjiure  and  Appointment. — Life  tenure,  and  appointment 
through  legislature  or  executive,  was  the  method  in  vogue  for  the 
higher  judiciary  at  the  beginning  of  the  nineteenth  century.  Only 
one  state,  Georgia,  at  that  time  elected  judges  for  its  higher  courts 
by  popular  vote.  The  tendency  is  entirely  the  other  way  at  the 
present  time.  Three  states'^  still  retain  a  life  tenure,  but  all  others 
fix  a  definite  term.  A  long  tenure  is  favored  by  three  other  states ;' 
the  other  states  vary  from  two  years  (Vermont)  to  twelve,  over 
one-half  (twenty  states)  favoring  the  six-year  term;  eight  and 
twelve  are  the  periods  next  favored.  A  class  system  is  in  use  in 
almost  two-thirds  of  the  states,  the  number  of  classes  varying  with 
the  period.  By  this  system  of  retiring  a  part  only  of  the  bench  at 
one  time,  the  opinions  of  its  members  are  less  likely  to  be  affected 
by  political  considerations,  continuity  in  decision  is  maintained,  and 
candidates  for  election,  being  fewer  in  number,  receive  more  atten- 
tion. The  usual  practice  is  to  elect  these  at  large,  not  by  districts. 
The  tenure  of  inferior  judges  is  for  a  shorter  term ;  if  the  supreme 
justices  for  example,  hold  for  six  years,  the  other  two  grades  of 
judges  hold  usually  for  four  and  two  years.  Theorists  regularly 
declaim  against  the  election  of  a  judiciary,  yet  the  practice  and 
experience  of  our  states  point  the  other  way.  The  decisions  of  the 
American  bench  compare  most  favorably  with  similar  decisions 
enunciated  by  appointed  judges  elsewhere,  and  the  results  justify 
the  practice.  Judges  of  the  supreme  court  are  still  appointed  by 
governor  and  council  in  Maine,  Massachusetts  and  New  Hampshire; 
in  Delaware,  Mississippi,  and  New  Jersey  by  governor  and  senate; 
in  Rhode  Island,  Vermont,  South  CaroHna  and  Virginia,  by  the 
assembly;  and  in  Connecticut  by  the  assembly  on  nomination  of 
the  governor.  Georgia  in  1898  (assembly)  and  Louisiana  (gov- 
ernor) in  1904,  were  the  last  to  change  to  the  elective  s^^stem.  The 
other  thirty-four  states  elect  their  judges  and  show  no  tendenc}^  in 
the  other  direction.  The  usual  provision  for  removal  is  by  vote  of 
the  assembly  (a  majority  or  two-thirds)  or  through  the  governor 
after  action  by  the  assembly.  Four  states  by  constitution  fix  the 
retiring  age  at  seventy  years,  Connecticut,  Maryland,  New 
Hampshire,  New  York. 

The  salaries  of  judges  are  far  less  frequently  specified  in  the 

'Massachusetts,  New  Hampshire    and  Rhode  Island. 

•Pennsylvania,  twenty-one  years;  Maryland,  fifteen;  New  York,  fourteen  years, 


Our  State  Constitutions  39 

constitutions  than  those  of  other  civil  officers.  Those  that  do,  as  a 
rule  give  the  legislature  power  to  inodify  at  discretion.  The  statutes 
of  our  states  show  a  strong  tendency  to  enlarge  salaries  paid  to 
judges,  doubtless  because  of  the  broader  learning  and  arduous 
labor  demanded  under  present  conditions  of  life.  The  rewards  of 
law  practice  are  now  so  great  that  capable  judges  can  not  be 
obtained  except  by  adequate  compensation. 

The  Jury. — It  is  plainly  evident  that  the  time-honored  jury 
system  is  subject  to  amendment  in  these  modem  days.  Several 
states'  by  constitution  or  by  statue  either  abolish  or  authorize  the 
legislature  or  the  court  to  abolish  at  its  discretion  the  grand  jury. 
If  retained,  the  number  of  its  membership  and  of  those  who  must 
concur  is  often  stated. 

Many  constitutions  arrange  that  a  jury  may  be  waived  alto- 
gether in  petty  civil  suits,  or  in  more  important  cases  by  agreement, 
or  in  misdemeanors ;  or  that  the  jury  may  be  less  than  twelve,  or  a 
verdict  may  be  rendered  by  a  vote  that  is  not  unanimous.  These 
modifications  are  too  numerous  to  specify  in  detail  but  many  such 
provisions  may  be  found  under  bill  of  rights  and  judicial  depart- 
ment.' These  modifications  in  the  jury  system,  though  not  in 
themselves  so  important,  yet  show  a  tendency  worth  noting. 
A  state  desirous  of  modifying  its  jury  system  should  put  a  provision 
to  that  effect  in  its  constitution,  and  must  do  so  if  its  constitution 
contains  some  such  provision  as  the  following:  "The  right  of 
trial  by  jury  shall  be  preserved  inviolate."  It  was  once  rather 
common  in  this  country  to  allow  a  jury  to  be  judge  of  the  law  as 
well  as  of  the  facts,  the  reaction  against  that  older  practice  is  shown 
by  a  provision  in  several  constitutions  that  "judges  shall  not 
charge  juries  with  respect  to  matters  of  fact  but  may  state  the 
questions  of  facts  in  issue  and  declare  the  law".®  Maryland  makes 
the  opposite  statement,  Article  XV,  5. 

It  is  now  common  in  most  of  our  states  to  grant  legal  and 
equitable  relief  in  one  suit,  a  reform  largely  brought  about  through 
the  influence  of  Justice  Field  (David  Dudley  Field).     A  provision 

'Sec  for  example  Michigan,  Colorado,  Illinois,  Minnesota,  Missouri,  North  Dakota,  South 
Dakota,  Wisconsin,   Wyoming,   Utah,   Washington. 

*Most  of  the  constitutions  contain  such  provisions  but,  as  illustrations,  see  Idaho,  Louis- 
iana, Montana,  North  Carolina,  South  Dakota,  Virginia. 

'Delaware;  also  Arkansas,  California,  Nevada,  South  Carolina,  Tennessee,    Washington. 


40  The  Annals  of  the  American  Academy 

authorizing  such  procedure  is  found  in  several  constitutions.*" 
"There  shall  be  but  one  form  of  civil  action,  and  law  and  equity 
may  be  administered  in  the  same  action."  Following  up  this 
tendency  many  constitutions  provide  for  tribunals  of  conciliation" 
whose  decisions  are  not  to  be  obligatory  tmless  by  mutual  consent. 

Certain  minor  judicial  features  of  our  state  constitutions  may 
briefly  be  mentioned  as  indicative  of  the  present  trend.  It  is  quite 
usual,  especially  in  new  constitutions,  to  define  the  boundaries  of 
judicial  districts.  This  is  purely  a  matter  of  detail  that  might 
better  be  placed  in  the  schedule  and  left  to  be  amended  by  ordinary 
statute.  Thii-teen  states  expressly  authorize  the  supreme  court  to 
superintend  and  control  inferior  courts;*^  six  states  provide  that 
judges  may  suggest  improvements  in  the  law  for  legislative  action." 
Four  of  the  older  states"  still  allow  the  governor  or  assembly  to 
ask  the  supreme  court  for  opinions  on  important  questions  of  law, 
or  on  "solemn  occasions."  South  Dakota  and  Florida  allow  the 
governor  this  privilege  but  all  the  other  states  wisely  prefer  to 
keep  the  supreme  court  out  of  politics  and  omit  the  provision. 

Idaho  and  North  Carolina  authorize  the  supreme  court  to  hear 
claims  against  the  state  but  its  decisions  are  to  be  merely  recom- 
mendatory. The  senate  as  a  court  of  impeachment  still  holds  its 
place  in  the  judicial  system,  though  it  is  an  exceedingly  cumber- 
some and  somewhat  antiquated  method  of  trial.  In  New  York 
the  judges  of  the  court  of  appeals  are  added  to  the  senate  in  such 
trials.  Oregon  only,  of  all  the  states  (VII,  19),  has  no  provision 
for  impeachment. 

An  attempt  to  define  libel  is  a  marked  feature  in  many  con- 
stitutions. This  may  be  found  either  under  Bill  of  Rights  or 
Judicial  Department.  Among  the  most  elaborate  of  these  are  the 
provisions  found  in  the  constitutions  of  Michigan,  California,  Penn- 
sylvania, Alabama  and  Arkansas.  Many  states  make  a  judicial 
officer  ineligible  to  any  other  than  a  judicial  office.  Some  states 
refuse  him  permission  to  be  absent  from  the  state  for  a  longer 

"•Among  these  may  be  mentioned  California,  Idaho,  Kentucky,  Montana,  New  York  and 
Texas;  see  also  Ohio,  Article  XIV. 

"Alabama,  Kentucky,  Louisiana,  Michigan,  North  Dakota,  Wisconsin  for  example. 

i^Alabama,  Arkansas,  Colorado,  Iowa,  Louisiana,  Maryland,  Michigan,  Missouri,  Montana, 
North  Dakota,  South  Dakota,  Wisconsin,  Wyoming.  Oregon  gives  this  power  to  its  circuit 
courts.     See  also  Texas  and  Washington  for  modified  powers. 

"Colorado,  Florida,  Idaho,  Illinois,  Nebraska,  Washington. 

"Massachusetts,  Maine,  New  Hampshire,  Rhode  Island. 


Our  State  Constitutions  41 

period  than  sixty  or  ninety  days.^^  Five  states"  require  the  court 
to  furnish  for  record  a  syllabus  of  the  points  adjudicated  in  each 
case.  A  few  constitutions  use  pressure  so  as  to  expedite  judges  in 
their  work.  Some  of  these  provide  that  judges  shall  not  collect 
their  salaries  unless  they  take  oath  that  all  controversies  finally 
submitted  have  been  decided."  Three  states  endeavor  to  define 
contempt  of  court."  Six  states^**  provide  that  the  publication  of 
decisions  shall  be  free,  and  two  provide  that  the  copyright  shall 
belong  to  the  state  (Nebraska,  South  Dakota). 

Alabama  authorizes  judges  to  exclude  the  public  from  the 
court  room  in  cases  of  rape,  and  Georgia  must  greatly  add  to  the 
business  of  its  supreme  court  by  declaring  that  "The  costs  in  the 
supreme  court  shall  not  exceed  ten  dollars,  unless  otherwise  pro- 
vided by  law."  Florida  requires  that  the  legislature  "appropriate 
at  least  $500  each  year  for  the  purchase  of  such  books  for  the 
supreme  court  library  as  the  court  may  direct." 

"California,  Missouri,  Utah,  Washington. 

"North  Dakota,  Oregon,  South  Carolina,  Utah,  West  Virginia. 

"For  such   and   similar  provisions   see   California,   Georgia,  Idaho,    Maryland,  Montana, 
Nevada,  South  Carolina,  Utah,  Washington. 
"South  Carolina,  Arkansas,  Louisiana. 
"Califoniia,  Missouri,  New  York,  Utah,  Washington,  Florida. 


CHAPTER  VII. 

Organization  of  the  Legislative  Department  and  its  Pro- 
cedure. 

The  most  important  department  in  our  system  of  government 
is  that  of  lawmaking.  This  power  at  the  beginning  of  our  national 
existence  one  hundred  and  thirty  years  ago  was  exerted  only 
through  legislatures ;  at  the  present  time  the  power  of  making  funda- 
mental law  has  largely  passed  to  the  constitutional  convention  and 
to  the  electorate.  This  latter  body,  through  the  referendum,  and 
in  some  states  through  the  initiative,  also  shares  to  some  extent  the 
power  of  making  statutes.  The  relative  importance  of  legislatures 
is  therefore  decreasing,  not  in  a  few  but  in  all  the  states,  and  that, 
too,  in  spite  of  the  fact  that  legislatures  are  much  more  democratic 
than  formerly.  Under  such  conditions  conventions  really  have 
before  them  a  problem  well  worth  considering,  viz.,  shall  an  attempt 
be  inade  to  enhance  the  dignity  and  importance  of  the  legislature 
so  as  to  make  it  worthy  of  the  place  it  theoretically  fills  in  our 
political  system,^  or,  on  the  other  hand,  shall  the  process  of  mini- 
mizing its  importance  be  continued  until  it  becomes  an  impotent 
body  of  small  consequence,  dragging  along  a  paltry  existence,  to  be 
finally  abolished  as  useless  by  some  future  convention?  A  power- 
ful executive  with  ordinance  privileges,  a  convention  meeting 
periodically,  and  the  use  of  the  initiative  and  referendum  as  in 
Oregon,  certainly  seem  to  leave  no  pressing  necessity  for  a  legis- 
lature. Under  present  tendencies  it  must  either  pass  out  of  use 
or  be  reorganized  on  a  scientific  basis. 

This  and  the  two  following  articles  will  contain  certain  facts 
obtained  from  a  comparison  of  our  constitutions  that  may  throw 
some  light  on  this  all-important  problem. 

legislative  organization. 

Name. — The  lawmaking  bodies  of  our  states  are  generall}^ 
called  legislatures,  but  that  in  most  cases  is  not  the  legal  name. 
In  twenty-three  states  it  is  known  as  the  general    assembly,    in 

'See  Vermont  constitution,  Chap.  II,  sec.  8,  "The  house     •     .     .     shall  consist  of  persons 
most  noted  for  wisdom  and  virtvic. " 

(42) 


Our  State  Constitutions  43 

seventeen  as  the  legislature,  in  three  as  the  legislative  assembly,* 
and  in  two  as  the  general  court. ^  All  the  states  name  the  small 
or  upper  house  the  senate,  and  thirty-seven  call  the  larger  body 
the  house  of  representatives.  Four  call  it  the  assembly,*  three, 
the  house  of  delegates,^  and  one,  the  general  assembly  (New 
Jersey). 

Membership. — It  is  hard  to  realize  that  in  our  state  legislatures 
alone  we  have  nearly  seven  thousand  lawmakers  (1,610  in  senate 
and  5,247  in  house,  or  an  average  for  each  state  of  thirty-six 
senators  and  one  hundred  and  sixteen  representatives).  If  "in  multi- 
tude of  counsellors  there  is  safety"  surely  we  are  safe  when  our 
legislatures  are  in  session!  If  undue  size  is  a  political  sin,  the  worst 
sinners  are  the  New  England  states,  which  have  in  their  six  lower 
houses  one  thousand  three  hundred  and  fifty-three  members. 
This  is  due  to  thsir  unfortunate  emphasis  on  the  importance  of  the 
town,  once  the  pride  but  now  the  bane  of  New  England  politics. 
The  six  states,'  largest  in  population  (over  three  millions)  average 
forty-one  in  the  senate  and  one  hundred  and  forty-eight  in  the 
house;  New  York,  the  largest  state,  has  fifty-one  and  one  hundred 
and  fifty  respectively.  The  twenty-one  states  having  a  popula- 
tion between  one  and  three  millions  average  forty  in  the  senate 
and  one  hundred  and  fifteen  in  the  house.  If  the  five  small  New 
England  states  (all  but  Massachusetts)  be  excluded  from  the  last 
set  having- a  population  under  one  million,  the  remaining  thirteen 
states  average  twenty-eight  in  the  senate  and  sixty-three  in  the 
House.  Of  all  the  legislatures  only  three  senates  have  a  member- 
ship of  over  fifty  (Illinois  and  New  York  fifty-one,  Minnesota 
sixty -three) ;  three  are  under  twxnty  (Utah  eighteen,  Nevada  and 
Delaware  seventeen).  Five  houses  have  a  membership  of  fifty  or 
under  (Delaware  thirty-five,  Nevada  thirty-seven,  Utah  forty-five, 
Idaho  forty -six  and  Wyoming  fifty) ;  and  five  houses  have  a  mem- 
bership of  over  two  hundred  (Pennsylvania  two  hundred  and  seven, 
Massachusetts  two  hundred  and  forty,  Vermont  two  hundred  and 
forty -six,  Connecticut  two' hundred  and  fifty-five,  and  New  Hamp- 
shire, with  its  meml)crship  of  three  hundred   and  ninety-one,   out- 

'North  Dakota,  Montana,  Oregon. 

'Massachusetts,   New   Hampshire. 

'California,  Nevada,  New  York,  Wisconsin. 

•Maryland,   Virginia,    West   Virginia. 

•New  York,  Pennsylvania,  Illinois,  Ohio,  Missouri,  Texas. 


44  The  Annals  of  the  American  Academy 

numbers  the  national  house) .  An  average  taken  of  the  fifteen  con- 
stitutions made  since  1888  shows  the  houses  to  be  respectively 
thirty-four  and  eighty -nine,  which  is  just  the  average  of  the  thirty- 
four  states  having  a  population  below  three  millions,  barring  out  as 
before  the  five  small  New  England  states. 

These  figures  show  that  the  American  tendency  is  to  have  a 
senate  from  one-half  to  one-third  that  of  the  house  in  member- 
ship,^ that  the  legislatures  of  our  largest  states  should  not  exceed  a 
joint  membership  of  about  two  hundred;  our  average  states  not 
over  one  hundred  and  fifty,  and  the  legislatures  of  our  small  states 
with  a  population  of  one  million  or  less  should  have  a  membership 
of  from  sixty  to  one  hundred.  Experience  shows  that  it  is  on  the 
whole  best  to  fix  the  numbers  definitely  in  the  constitution.  If  the 
legislature  is  given  the  power,  the  number  of  representatives 
becomes  too  large.  It  is  far  easier  in  practice  to  increase  than  to 
decrease  the  number. 

Representation.^ — Three  of  the  New  England  states  have  both 
houses  organized  on  a  basis  of  population  similar  in  practice  to  that 
of  the  other  states.  The  three  other  states  of  this  section  each 
have  one  of  their  houses  more  or  less  democratic,  but  the  other 
house  is  based  on  a  town  system,  regardless  of  population.  These 
states,  however,  with  the  exception  of  Massachusetts,  are  omitted 
from  the  comparisons  of  this  paragraph  since  they  should  be  studied 
by  themselves. 

The  prevailing  basis  of  representation  in  the  senate  of  the 
forty  remaining  states  is  population.  Twenty -seven  order  a 
reapportionment  after  every  census,  based  on  population,  and  four 
based  on  voting  population.®  The  other  nine  states^"  also  base  the 
apportionment  on  population,  but  make  some  modification  or 
exception  that  may  render  the  senate  not  quite  so  democratic  in 
basis  as  those  of  the  other  thirty-one  states. 

In  thirty -six  states  population,  and  in  four  states  voting  popu- 
lation, is  the  basis  of  representation  in  the  house.  As  this  is  the 
larger  house  twenty -one  states  provide  that  each  county,  or  each 
county  having  a  given  fraction  of  the  ratio  (one-half  to  two-thirds) , 

'This  ratio  is  fixed  in  some  states,  for  example  Iowa,  Nevada,  Utah,  Washington,  Wyoming. 
*See  also  Chapter  XL 

'Arkansas,    Indiana,   Massachusetts,   Tennessee. 

'"Delaware,  Georgia,  Maryland,  Montana,  New  York,  New  Jersey,  Pennsylvania,  South 
Carolina,  Texas. 


Our  State  Constitutions  45 

shall  have  at  least  one  member.  This  produces  a  degree  of  inequal- 
ity in  representation  that  will  be  considered  in  a  later  chapter. 
Ten  of  the  older  states  provide  in  their  constitutions  a  complex 
ratio  for  determining  representation,  but  such  schemes  are  not 
favored  in  most,  or  at  all  in  the  newer,  constitutions.  The  single- 
member  district  is  the  prevailing  form  in  the  states,  though 
there  are  some  exceptions,  since  the  county  may  be  used  as  a  gen- 
eral district    for  the  house  and  its  representatives  be  elected  at 

large." 

Terms. — Twenty-nine  states  fix  on  a  four-year  term  for 
senators  and  all  but  six^^  of  ^hese  provide  for  arrangement  into  two 
classes,  one-half  retiring  every  two  years.  New  Jersey  elects  for 
three  years  on  a  three-class  system.  Thirteen  states^^  elect  their 
senators  for  two  years  only,  and  two  for  one  year  (Massachusetts 
and  Rhode  Island).  For  members  of  the  house  the  term  is  two 
years  in  thirty-eight  states,  four  years  in  Alabama,  Louisiana, 
Mississippi,  and  one  year  in  Massachusetts,  New  York,  New  Jersey 
and  Rhode  Island. 

Sessions. — In  the  "good  old  times"  constitutions  used  to 
declare  that  "The  legislature  ought  frequently  to  assemble."" 
The  states  seem  not  so  sure  of  that  now  for  there  are  three  states 
that  elect  their  legislatures  quadrennially,  Louisiana,  Alabama, 
Mississippi,  the  last  two  of  which  have  but  one  regular  session 
during  that  term.  Mississippi,  however,  provides  for  a  short 
special  session  midway  in  the  term,  to  act  on  appropriation  and 
revenue  bills.  All  other  states  hold  biennial  sessions  except 
Georgia,  Massachusetts,  New  Jersey,  New  York,  Rhode  Island, 
South  Carolina  which  provide  for  annual  meetings.  Twenty -three 
states  place  no  constitutional  limitation  on  the  length  of  the  session, 
but  nine^^  of  them  provide  that  pay  stop  entirely  or  be  reduced  in 
amount,  at  the  end  of  a  specified  time.  The  practical  effect  of 
this  proviso  is  to  reduce  the  session  to  the  period  of  full  pay.  The 
average  session  for  the  fourteen  legislatures  unlimited  in  time 
(averaging  the  two  last  sessions),  is  one  hundred  fourteen  days. 

"For  example,  in  Illinois.  Mississippi,  Missouri,  North  Dakota,  Texas. 

i^Alabama,  Delaware,  Kansas,  Louisiana,  Mississippi,  Virginia. 

»3Connecticut,  Georgia.  Idaho,  Maine,  Michigan,  Nebraska,  New  Hampshire,  New  York. 
North  Carolina,  Ohio,  South  Dakota,  Tennessee,  Vermont. 

"See  constitutions  of  Mar>'land,  Massachusetts,  South  Carohna. 

wCalifomia,  Idaho,  Kansas,  Missouri,  North  CaroUna,  Oregon,  South  Carolina,  Tennessee. 
Texas. 


46  The  Annals  of  the  American  Academy 

It  would  be  larger,  but  the  pay  in  three  of  these  states  is  so  small" 
that  there  is  no  inducement  to  protract  the  session.  If  all  states 
except  these  fourteen  be  considered  as  having  a  constitutional 
time  limit  we  find  eighteen  setting  a  sixty-day  limit,  four  a  ninety- 
day,  and  four  a  forty-day  limit,  and  five  at  odd  intervals  ranging 
from  forty-five  to  seventy-five  days.  Four^^  states  set  a  limit  but 
authorize  the  legislature  to  extend  the  same  if  necessary.  Special 
sessions  are  regularly  authorized  and  seventeen  states  set  limits 
to  the  duration  of  these,  the  favored  periods  being  twenty,  thirty 
and  forty  days. 

Salaries. — -About  one-half  of  the  constitutions  specify  the  per 
diem  of  their  legislators  and  invariably  get  it  too  low.  Once  fixed 
in  the  constitution  it  is  hard  to  raise  the  amount  by  amendment.^* 
Voters  seem  to  delight  in  voting  down  all  forms  of  increase  in  pay. 
The  per  diem  amount  paid  is  often  barely  sufficient  for  expenses 
at  a  cheap  hotel  and  must  be  eked  out  from  other  sources  of  income. 
Many  constitutions  fortunately  allow  legislatures  discretion  in 
regard  to  the  amount  of  pay  and  in  such  states  a  more  generous 
provision  is  made.  The  best  paid  legislators  are  those  of  New 
York  and  Pennsylvania  ($1,500)  and  Ohio  ($1,200.)  The  lowest 
are  Oregon  (three  dollars  per  day  for  forty  days),  Maine  $150  for 
the  session),  and  Kansas,  Michigan  and  Vermont  at  three  dollars 
per  day.  Mileage  is  regularly  specified  in  addition,  and  in  a  few 
constitutions  (five)  an  attempt  is  made  to  regulate  the  amount  of 
incidental  expenses. ^^ 

THE  PROCEDURE  IN  BILLS. 

Under  the  legislative  department  will  regularly  be  found  a 
number  of  provisions  in  regulation  of  the  organization  and  general 
powers  of  the  legislature.  Among  these  is  one  authorizing  each 
house  to  determine  the  rules  of  its  own  procedure.  In  one  respect 
at  least,  this  power  has  been  taken  from  the  houses.  Proper  de- 
liberation and  an  opportunity  for  free  discussion  are  so  important 
in  legislation  that  the  procedure  in  respect  to  the  passing  of  bills  is 
now  in  many  of  our  states  regulated  by  constitution,  from  the  in- 
troduction of  the  bill  to  its  promulgation  after  passage.     This  is 

"Maine,  New  Hampshire,  Vermont. 

"Arkansas,  Georgia,  Virginia,  West  Virginia. 

ispor  example  Michigan,  1901,  Kansas,  1902,  Texas,  1906,  rejected  such  amendments. 

"For  example  Missouri  and  Delaware. 


Our  State  Constitutions  47 

one  of  the  most  important  checks  on  legislative  power  yet  devised. 
The  contrast  between  the  old  and  the  new  in  this  respect  can  easily 
be  seen  by  comparing  the  ancient  constitutions  of  New  England 
with  almost  any  of  those  made  since  1888,  especially  the  consti- 
tutions of  Alabama,  Kentucky,  Louisiana,  Mississippi,  In  three 
constitutions  a  separate  heading  has  been  set  aside  for  such  and 
kindred  regulations  of  procedure  or  proceedings.^"  A  complete  list 
of  such  restrictions  would  practically  indicate  all  the  evils  that 
have  developed  in  legislative  experience,  for,  of  course,  each  re- 
striction is  aimed  at  some  observed  defect  or  evil  in  the  legislative 
system. 

It  is  generally  provided  that  no  law  shall  be  passed  except  by 
bill,  and  that  no  new  bill  shall  be  introduced  within  the  last  few 
days  of  the  session — ^three  to  twenty  days — except  by  consent  of  a 
large  fraction  of  the  house.  Some  confine  this  restriction  to 
appropriation  bills.  No  bill  is  to  embrace  more  than  one  subject, 
which  must  be  plainly  expressed  in  its  title,  any  part  not  so  expressed 
being  null  and  void.  General  appropriation  bills,  and  bills  for  the 
revision  and  codification  of  laws  are  excepted  from  this  provision. 
The  time  honored  provision  that  revenue  bills  shall  originate  in  the 
house  only,  and  be  subject  to  amendment  in  the  senate,  is  required 
by  twenty-one  states.  The  others  either  expressly  authorize  either 
house  to  introduce  any  bill  or  infer  it  by  silence.  It  is  regularly 
provided  that  every  appropriation  outside  of  general  appropria- 
tions shall  be  by  special  bill.  Some  (Mississippi  for  example)  add 
that  no  appropriation  bill  shall  be  passed  which  does  not  fix 
definitely  the  maximum  sum  thereby  authorized  to  be  drawn  from 
the  treasury.  In  others,  New  York  for  example,  bills  appropriat- 
ing money  for  local  or  private  purposes  must  receive  a  two-thirds 
vote  of  all  members  elected  to  both  houses,  and,  again,  not  less 
than  three-fifths  of  all  members  elected  shall  form  a  quorum  for  the 
consideration  of  a  revenue  or  appropriation  bill.  No  act  can  be 
revised  or  amended  by  mere  reference  to  its  title,  but  what  is 
amended  must  be  set  forth  in  full ;  nor  is  any  amendment  to  a  bill 
allowed  which  would  change  the  scope  and  object  of  the  bill. 

In  view  of  the  great  importance  of  legislative  committees  it  is 
strange  that  so  few  constitutions  attempt  to  regulate  them.  The 
task  is  apparently  too  great  for  conventions.     The  only  provisions 

^''Mississippi,  Missouri,  Texas. 


48  The  Annals  of  the  American  Academy 

are  the  following :  Some  nine  states  require  that  all  bills  must  be 
referred'  to  a  committee.  Kentucky  adds  that  whenever  a  com- 
mittee fails  or  refuses  to  report  within  a  reasonable  time,  any  mem- 
ber may  call  up  the  bill.  Three  states^^  make  provision  for  a  joint 
committee  on  local  and  special  legislation,  which  under  its  instruc- 
tions ought  to  be  most  useful  in  handling  that  distressing  part  of 
legislation.  Five  states  provide  that  voting  on  reports  of  com- 
mittees of  conference  shall  be  recorded  by  a  yea  and  nay  vote. 

Many  of  the  constitutions  authorize  a  demand  for  a  yea  or  nay 
vote  on  any  question;  the  number  who  may  make  the  demand 
varies  from  one  member  to  one-fifth  of  the  membership.  It  is  gen- 
erally provided  that  bills  must  be  read  three  times,  but  differences 
arise  as  to  whether  these  shall  be  read  in  full  and  on  three  separate 
days.  The  last  reading  is  regularly  in  full  and  vote  on  its  passage 
is  recorded  by  yeas  and  nays.  New  York  forbids  amendment  at 
the  last  reading.  Mississippi  requires  that  all  votes  on  final  passage 
shall  be  subject  to  one  day's  reconsideration.  It  is  now  a  common 
requirement  that  bills  be  printed  with  all  amendments  and  placed 
in  the  hands  of  members  before  the  final  vote."  Louisiana  author- 
izes also  the  printing  of  minutes  each  day  for  the  use  of  members. 

A  quorum  is  regularly  a  majority  of  all  members,  and  bills  pass 
by  a  majority  of  those  present,  but  some  require-^  that  every  bill 
must  receive  a  majority  vote  of  all  members  elected,  and  New 
Hampshire  requires  that  when  less  than  two-thirds  of  all  members 
are  present,  a  two-thirds  vote  is  necessar}'.  Kentucky  makes  the 
fraction  of  those  present  two-fifths. 

All  bills  of  course  when  finally  passed  must  be  signed  by  the 
presiding  officers,  but  this  has  become  a  quite  formal  occasion; 
other  business  is  suspended, the  bill  is  read  at  length  and  compared, 
then  the  chairman  signs  in  open  session  and  sends  on  the  bill  to  the 
other  house  where  the  same  procedure  takes  place. ^^  Eleven  con- 
stitutions allow  any  member  to  make  formal  protest  against  a  bill 
and  to  have  the  protest  entered  on  the  records. ^^  Minnesota  allows 
no  bill  to  be  passed  on  the  last  day  of  the  session.  Kentucky, 
Maine,  Mississippi,  New  York  forbid  riders  on  appropriation  bills. 

"Georgia,  Mississippi,  Virginia. 

'^As  illustrations,  Missouri,  Pennsylvania,  New  York. 

'^Louisiana,  and    Delaware   for   example. 

'^See  Alabama,  Kentucky,  and  Missouri,  as  illustrations. 

'^See  Missouri  for  example. 


Our  Stale  Co)istitutions  aq 

About  one-half  of  the  constitutions  define  when  the  laws  shall  go 
into  effect.  The  period  set  varies  from  forty  to  ninety  days,  the 
last  being  the  favorite.  A  few  prefer  to  fix  a  definite  date  for  all 
bills,  as  the  first  day  of  June  or  July,  this  is  usually  equivalent  to  a 
sixty  or  ninety  day  limit. ^^  As  a  rule  provision  is  made  that  a  bill 
may  go  into  effect  immediately  in  case  of  emergency.  It  is  easy 
to  see  that  the  strict  enforcement  of  tlie  severest  of  these  regula- 
tions would  prevent  much  hasty  legislation. 

"See  Illinois,  Iowa,  Maryland,  North  Dakota. 


CHAPTER  VIII. 

Limitations  on  the  Legislature. 

A  state  has  original,  not  delegated,  powers.  It  can  legally  do 
whatsoever  it  pleases  within  its  own  borders,  subject  only  to  such 
regulations  and  prohibitions  as  may  be  found  in  the  national  con- 
stitution. The  legislature,  as  the  representative  of  the  people,  may 
exercise  all  these  vast  powers  at  its  discretion.  The  executive  and 
the  judicial  departments  have  no  such  authority.  The  power  to 
make  law  includes  the  power  to  regulate,  alter,  or  even  abolish  these 
departments.  In  other  words  in  democracies  the  legislature  is 
legally  omnipotent.  The  legislatures  of  our  states  during  the  rev- 
olutionary period  really  wielded  this  immense  power,  but  every 
generation  since  that  time  has  witnessed  the  gradual  diminution 
of  it.  This  process  has  already  in  part  been  outlined;  the  adoption 
of  the  theory  of  the  separation  of  powers  brought  about  the  transfer 
of  certain  powers,  very  slight  at  first,  through  the  written  constitu- 
tion to  the  executive  and  judicial  departments;  then  the  right  to 
make  fundamental  law  was  transferred  to  the  convention  and  to 
the  electorate  through  the  referendum ;  now  the  power  over  admin- 
istration is  rapidly  passing  from  the  legislature  to  the  executive, 
and  judicial  organization  and  powers  are  quite  fully  set  by  the 
convention,  which  leaves  to  the  legislature  merely  the  petty  details 
of  judicial  regulation. 

Legislatures  would  however  still  remain  the  most  powerful  of 
the  three  departments,  if  their  right  to  make  statutes  were  left 
untouched,  but  even  this  privilege  is  denied  them  in  part.  Atten- 
tion has  already  been  called  to  the  fact  that  conventions,  wisely  or 
unwisely,  place  statutes  in  recent  constitutions.  A  twelve-thou- 
sand-word judiciary  article  in  the  Louisiana  constitution,  and  a 
seven-thousand-word  article  on  corporations  in  the  Virginia  con- 
stitution, show  this  tendency  clearly.  In  fact  every  detailed  com- 
mand, prohibition,  or  regulation  in  a  constitution,  is  in  effect  a 
usurpation  of  the  statute-making  power  of  legislatures,  so  that, 
in  a  sense,  the  length  of  a  constitution  roughly  indicates  the  amount 
of  limitation  placed  on  legislatures. 

In  addition  to  this  loss  of  power,  the  electorate  also,  working 

(50) 


Our  State  Constitutions  51 

through  the  convention,  has  taken  from  the  legislature  large 
powers  in  the  making  of  statutes.  The  climax  of  this  tendency  is 
seen  in  the  Oregon  amendment  of  1902,  already  referred  to,  which 
reads,  "The  legislative  authority  of  the  state  shall  be  vested  in  a 
legislative  assembly,  .  ,  .  but  the  people  reserve  to  themselves 
power  to  propose  laws  and  amendments  to  the  constitution,  and  to 
enact  or  reject  the  same  at  the  polls,  independent  of  the  legislative 
assembly,  and  also  reserve  power  at  their  own  option  to  approve 
or  reject  at  the  polls  any  act  of  the  legislative  assembly.  The  first 
power  reserved  by  the  people  is  the  initiative.  .  .  .The  second  power 
is  the  referendum."  The  amendment  later  provides  that  the  style 
of  all  bills  shall  be:  "Be  it  enacted  by  the  people  of  the  State  of 
Oregon"  (formerly  "by  the  Legislative  Assembly)."  This  amend- 
ment applies  to  the  constitution  as  well  as  to  statutes.  Two  other 
states  have  authorized  the  initiative  and  the  referendum,  but  apply 
these  principles  to  statutory  legislation  only,  South  Dakota,  1898, 
Utah,  1900.^ 

In  ways  equally  effective,  though  not  so  spectacular,  the 
people  through  the  convention  have  placed  in  the  constitutions 
requirements  that  certain  kinds  of  general  laws  shall  be  referred  to 
the  electorate  for  final  approval  or  rejection.^  Space  will  not  allow 
a  full  discussion  of  this  subject,  but  in  brief  it  may  be  said  that  in 
many  states  referenda  must  be  ordered  in  the  case  of  general 
statutes  that  involve  an  increase  of  state  debt  above  a  fixed  maxi- 
mum, an  increase  in  the  tax  rate  when  fixed  by  constitution;  or  the 
location  of  a  state  capital  or  important  state  institution,  such  as  a 
university  or  a  penitentiary.  In  statutory  local  legislation  referen- 
dum requirements  are  entirely  too  numerous  to  specify.  Prac- 
tically all  the  states  use  the  referendum  more  or  less  in  matters 
affecting  counties,  towns  and  cities,  or  on  such  questions  as  the 
licensing  of  saloons  or  an  increase  in  local  debt  for  special  expendi- 
tures. 

Special  Legislation. — Such  restrictions  have  largely  reduced 
the  importance  of  legislatures  in  the  making  of  general  statutes. 
These  bodies   find  some   consolation,   however,   if  only  they   are 

'Initiative  and  referendum  amendments,  after  passing  the  legislatures  of  Massachusetts, 
Nevada,  and  Missouri,  wrere  rejected  by  the  next  legislatures,  in  the  first  two  states,  1904,  1905, 
and  by  the  people  in  Missouri,  1904. 

'By  judicial  interpretation  referenda  on  general  statutes  must  be  authorized  by  the 
constitution. 


52  The  Aiuials  of  the  American  Academy 

allowed  to  pass  at  pleasure  special,  local  or  private  legislation. 
Through  such  measures  friends  are  won,  interests  placated,  and 
constituencies  made  secure.  An  attack  upon  this  privilege  seems 
to  add  insult  to  injury ;  forbid  the  privilege  and  the  chief  delights 
of  legislative  existence  pass  away.  But  what  are  the  facts  in  the 
case? 

Alabama  in  190 1,  in  a  session  of  one  hundred  and  thirteen  days, 
under  its  old  constitution,  which  had  few  restrictions  on  special 
legislation,  passed  1,132  laws,^  only  ninety  of  which  were  general. 
In  1904,  in  two  sessions  of  eighty  days,  under  the  new  constitution, 
which  contains  many  restrictions,  803  laws  were  passed,  179  of 
which  were  general.  Virginia  in  a  ninety-one  day  session,  190 1-2, 
under  its  old  constitution,  passed  694  laws,  eighty-seven  of  which 
were  general.  In  1902-4, under  its  new  constitution,  during  several 
sessions  lasting  two  hundred  and  sixty -seven  da3^s,  it  passed  608 
laws,  317  of  which  were  general.  In  its  regular  session  of  sixty- 
two  days,  in  1904,  it  passed  262  laws,  135  of  which  were  general. 
These  illustrations  show  the  effect  of  restrictions. 

Most  state  legislatures  meet  in  the  odd  years.  In  1901  those 
that  met  passed  13,854  laws,  5,318  of  which  were  general.  In  1903 
14,098  laws  were  passed,  5,198  of  which  were  general.  In  1905, 
13,172  laws  were  passed  and  5,608  were  general.  If  the  legislation 
of  all  the  states  during  the  last  legislative  period  (i 904-1 905)  be 
considered,  18,937  laws  were  passed,  8,362  of  which  were  general. 
During  that  same  period  the  New  England  states,  whose  legis- 
latures are  almost  unrestricted,  passed  3,877  laws,  of  which  1,162 
were  general.  Six  states*  whose  legislatures  are  fully  restricted, 
passed  1,558  laws,  1,127  o^  which  were  general.  In  other  words 
New  England  special  legislation  was  seventy  per  cent  of  the  whole 
and  that  of  the  other  six  states  but  twenty-eight  per  cent  of  the 
whole. 

To  sum  up,  it  may  be  assumed  that,  roughly  speaking,  unre- 
strained legislation  will  be  seven-tenths  special,  fully  restrained 
legislation  three-tenths  special,  or  if  the  average  of  all  legislation  for 
the  last  five  years  be  taken,  it  may  be  safely  asserted  that  three- 
fifths  of  our  state  legislation  is  special,  private  or  local. ^     Under 

'In  this  paragraph  the  term  laws  includes  resolutions  also,  but  the  proportion  of  these  is 
very  small. 

^California,  Idaho,  Illinois,  North  Dakota,  South  Dakota,  Utah. 

*The  basis  for  these  totals  is  obtained  from  the  excellent  Summaries  of  Legislation  issued 
by  the  New  York  State  Library. 


Our  State  Constitutions  53 

such  conditions  general  legislation  can  not  secure  the  attention  it 
deserves.  Really  capable  men,  wearied  by  numerous  demands  on 
their  time  and  patience  in  the  consideration  of  relatively  unimpor- 
tant matters,  drop  out  of  our  legislatures  and  yield  place  to  small 
men,  big  with  the  sense  of  their  own  importance,  who  delight  in 
special  legislation  as  a  means  to  enable  them  to  hold  a  position 
for  which  they  are  entirely  unfit.  Add  to  this  the  waste  of  money 
through  needlessly  protracted  sessions,  and  undue  multiplication 
of  law,  and  it  is  easy  to  see  that  conventions  have  a  problem  on 
their  hands  in  devising  a  remedy  for  one  of  the  greatest  of  our 
political  evils. 

It  now  becomes  possil^le  to  ask  what  remedies  have  been 
devised  to  check  this  evil.  The  most  obvious  remedy  is  to  forbid 
special  legislation.  It  is  interesting  to  study  the  old-fashioned 
constitutions  of  New  England,  almost  void  of  restrictions,  then  to 
take  up  the  next  older  set,  and  see  restrictions  creeping  in  one  bv 
one,  the  more  numerous  as  you  go  westward,  where  democracy  is 
more  vigorous,  and  at  last  to  see  in  the  recent  constitutions  long 
lists  of  restrictions,  finally  as  many  as  thirty-five,  each  forbidding 
some  particular  kind  of  local,  special,  or  private  legislation.  To 
make  assurance  doubly  sure  the  new  Alabama  constitution  care- 
fully defines  terms: 

"A  general  law  within  the  meaning  of  this  article  is  a  law 
which  applies  to  the  whole  state;  a  local  law  is  a  law  which  applies 
to  any  political  subdivision  or  subdivisions  of  the  state  less  than 
the  whole;  a  special  or  private  law  within  the  meaning  of  this 
article  is  one  which  applies  to  an  individual,  association  or  cor- 
poration." 

The  trouble  with  this  remedy  is  that  it  may  go  too  far.  Our 
governors  in  their  messages  already  complain  of  an  increase  of 
statutes,  general  in  their  nature  but  really  special  in  their  applica- 
tion. Special  legislation  must  be  had  at  times,  and  there  should  be 
ways  of  getting  it  without  subterfuge.  Let  there  be  restrictions  by 
all  means,  but  allow  some  discretion  on  occasions. 

The  device  of  a  special  committee  on  local  legislation,  already 
referred  to  as  authorized  in  Georgia,  Mississippi  and  Virginia,  is 
excellent  in  design  but  in  practice  seems  not  to  work  well,  if  one 
may  judge  from  the  amount  of  special  legislation  still  issued  by  the 
legislatures  of  those  states.     Such  committees  should  be  impartial 


54  Tlie  Annals  of  the  American  Academy 

and  judicial  in  the  exercise  of  their  work,  Hke  similar  committees 
of  the  British  House  of  Commons,  where  the  handling  of  special 
legislation  is  a  fine  art. 

Another  device  found  in  several  constitutions'  and  in  the 
statutes  of  some  others  (Vermont  for  example),  is  to  require  that 
no  local  or  special  bill  shall  be  passed,  unless  notice  of  the  intention 
to  apply  for  such  legislation  shall  have  been  published  in  the  locality 
at  least  thirty  (or  sixty)  days  before  the  bill  is  introduced.  This  is 
a  most  excellent  plan  if  properly  performed.  If,  however,  the 
notice  is  published  once,  in  fine  type,  in  an  obscure  corner  of  an 
obscure  paper,  little  will  be  accomplished  by  the  requirement. 

A  much  more  promising  remedy,  imitated  from  the  excellent 
English  system  of  supervision  over  local  government,  and  now 
partly  in  use  in  many  states,  under  legislative  authority,  is  to 
authorize  by  general  statute  the  several  departments  of  admin- 
stration  to  apply  the  principles  of  such  statute  to  special  cases  as 
they  arise.  For  example,  the  auditor  may  settle  claims  for  tax 
rebates,  the  land  commissioner  many  points  in  titles,  the  secretary 
of  state  issue  charters,  and  the  courts,  like  the  federal  court  of 
claims,  pass  on  disputed  accounts.  We  have  now  in  many  of  our 
states  boards  of  equalization.  Such  a  board  might  have  its 
powers  enlarged  so  as  to  pass  on  very  many  requests  from  localities 
for  special  legislation.  The  English  Local  Government  Board, 
which  performs  such  a  service  for  counties,  towns,  and  cities,  is, 
perhaps,  the  most  successful  device  in  British  national  administra- 
tion. This  movement  is  hard  to  follow  from  constitutions,  because 
the  statutory  power  of  legislatures  is  ordinarily  sufficient  for  action, 
but  there  is  a  strong  trend  in  this  direction  throughout  the  country, 
and,  if  supplemented  by  thorough  executive  oversight,  and  civil 
service  rules,  should  prove  the  ultimate  remedy  for  the  evils  of 
special  legislation.  That  at  least  is  the  conclusion  of  the  best  gov- 
erned of  the  European  states^  which  do  not  suffer,  as  the  United 
States  does,  from  such  a  perversion  of  lawmaking. 

•Arkansas,  Florida,  Georgia,  Louisiana,  Missouri,  North    Carolina,  Pennsylvania,  Texas. 
^Great  Britain,  Germany,  France. 


CHAPTER  IX. 

Constitutional  Regulation  of  Important  Interests. 

It  is  said  that  Americans  are  prone  to  assert  dogmatically  their 
opinions  on  all  subjects  of  which  they  are  ignorant,  and  to  be 
diffident  in  matters  with  which  they  are  fully  conversant.  The 
point  of  this  saying  can  be  appreciated  by  one  who  seeks  to  ascer- 
tain how  conventions  regulate  important  interests.  Most  of  these 
interests  are  in  process  of  rapid  development,  for,  through  the 
multiplication  of  machiner>^  and  wider  knowledge,  the  conditions 
of  life  change  with  wonderful  suddenness,  as  compared  with  the 
slow  changes  of  earlier  centuries.  Yet  conventions  dogmatically 
fix  in  the  fundamental  law  provisions  that  must  be  largely  super- 
seded in  a  very  few  years.  Virginia's  article  on  corporations  for 
instance,  placed  in  a  constitution  that  can  be  amended  only  with 
great  difficulty,  and  Louisiana's  judiciary  department,  no  matter 
how  excellent  they  may  be,  yet  will  surely  need  frequent  amend- 
ment. For  such  reasons  the  work  of  conventions  in  respect  to  the 
topic  now  under  discussion  is  the  least  satisfactory  of  all  their  labors. 
An  old  debater  once  advised  a  beginner,  "When  you  don't  know 
what  else  to  say,  discuss  general  principles."  Our  conventions 
should  follow  this  advice,  and  refrain  from  rushing  in  "where  angels 
fear  to  tread." 

There  are  few  specialists,  if  any,  who  would  with  alacrity 
undertake  to  write  out  for  a  state  constitution  a  detailed  system 
of  taxation,  of  finance,  or  education;  of  regulation  for  corporations, 
common  carriers,  or  banks;  or  to  define  a  policy  toward  labor,  or 
state  ownership  of  monopolies,  or  control  over  mining  interests. 
All  such  matters  must  of  course  receive  most  careful  attention  from 
conventions,  but  the  question  is  rather  whether  such  attention 
should  not  confine  itself  chiefly  to  the  formulation  of  general  prin- 
ciples, to  a  tentative  outline  for  a  system  of  regulation,  with  some 
discretionary  power  left  in  the  legislature,  and  then  to  pay  much 
more  attention  to  methods  whereby  a  higher  grade  of  officials  and 
legislators  may  be  secured.  If,  for  illustration,  the  membership 
of  our  legislatures  were  cut  in  half,  and  the  pay  of  the  remaining 
half   doubled;  if  our  numerous   departments,   commissions,   and 

(55) 


56  The  Annals  of  the  American  Academy 

boards  were  consolidated  and  unified,  and  salaries  of  heads  trebled ; 
real  economy  would  result,  and  efficiency  be  greatly  increased. 
Lastly,  conventions  should  recognize  that  much  of  their  work  is  at 
the  best  transitory,  and  hence  that  the  method  of  amendment 
should  be  comparatively  simple.  An  unchangeable  constitution  in 
these  days  is  an  insult  to  the  spirit  of  a  progressive  democracy. 

After  this  preface,  the  question  may  now  be  asked,  what  points 
in  our  constitutions  seem  on  the  whole  most  general  in  respect  to 
important  interests. 

Local  Bodies  Politic. — It  seems  plain  from  the  constitutions, 
that  the  town  system  of  New  England  is  dead.  It  is  not  imitated 
per  se  outside  of  that  section,  and  within  that  section  is  in  a  state 
of  noxious  desuetude.  The  real  unit  in  the  United  States  is  the 
county,  in  thinly  settled  states  cut  up  into  administrative  districts, 
which  gradually  become  townships  as  population  multiplies.  These 
townships  remain  integral  parts  of  the  county,  are  supervised,  and 
yet  have  a  large  share  of  local  autonomy.  The  urban  center  has 
two  distinct  organizations,  the  village  and  the  large  city.  There  is 
first  the  village,  borough,  town,  or  city,  organized  under  general 
law  in  almost  all  the  states,  and  having  a  small  compact  popula- 
tion under  a  simple  form  of  government.  Lastly  comes  the  incor- 
porated city  of  large  size,  either  organized  by  special  charter,  or 
in  classes  by  general  law,  or  authorized  by  constitution  to  form 
their  own  charters,  subject  to  the  constitution  and  general  statutes 
of  the  states.^ 

Corporations. — In  general  the  points  worth}'-  of  notice  in  con- 
stitutions respecting  corporations  of  all  sorts  are  as  follows:  First, 
a  distinction  is  made  between  corporations  organized  for  profit, 
and  those  for  other  purposes;  these  last  may  be  exempted  from 
taxation,  if  religious,  educational,  or  eleemosynary  in  character. 
Second,  a  distinction  is  made  between  domestic  and  foreign'  cor- 
porations, and  this  last  class  regulated  so  as  to  secure  investors 
and  the  pa^^ment  of  suitable  fees  or  taxes.  In  respect  to  corpora- 
tions organized  for  profit,  constitutions  regulate  their  relations  to 
the  state  and  seek  to  secure  the  interests  of  their  stockholders. 

iPor  home  charter  cities,  see  the  constitutions  (amended)  of  California,  Minnesota,  Missouri, 
Oregon  and  Washington.  Illinois,  in  1904,  passed  an  amendment  authorizing  the  legislature 
to  pass  special  laws  for  Chicago,  but  subject  to  referendum.  The  franchise  rights  of  cities  are 
protected  in  about  one-half  the  constitutions  (see  South  Carolina  as  example). 

^Those  not  chartered  by  the  state  itself. 


Our  State  Constitutions  57 

They  provide  that  corporations  be  chartered  by  general  or  special 
law,  that  their  charters  be  subject  to  amendment  or  revocation, 
that  those  already  organized  must  file  acceptance  of  constitutional 
provisions  if  they  desire  to  have  the  benefit  of  future  legislation,  and 
that  they  be  subject  to  general  regulation.     This  regulation  may 
be  loose  and  allow  large  freedom,  or  may  be  strict  or  paternal  in 
character.     It  may  include  regulations  of  capital  stock  and  its 
issuance,  periodic  reports  to  a  state  commission  having  powers  of 
supervision  and  regulation,  and  publicity  of  conditions.     In  addi- 
tion there  may  be  prohibitions  of  pools,  monopolies,  and  trusts, 
regulation  of  the  exercise  of  the  power  of  eminent  domain,  aiming 
to  secure  the  rights  of  those  whose  property  is  taken;  and  pro- 
hibitions against  the  lending  of  public  credit  by  a  state  or  locality 
to   any  private  enterprise.     Some  states'  forbid  corporations  to 
hold  real  estate  out  of  use  after  a  fixed  period  of  years  (five  to  ten). 
Illustrations  of  the  above  provisions  may  be  found  in  most  of  the 
western   and   newer   southern    constitutions,   notably    Kentucky, 
Louisiana,  Alabama  and  Virginia.     The  article  on  corporations  in 
this  last  constitution  is  a  really  excellent  production,  well  worthy 
of  study.     The  articles  in  the  constitutions  of  Alabama  and  South 
Dakota  on  banks  are  typical  of  the  usual  provisions  on  that  subject. 
Texas,  which  heretofore  has  forbidden  the  incorporation  of  banks, 
in  1904  authorized  such  incorporation  under  certain  restrictions. 
Taxation  and  Finance. — There  are  wide  differences  in  respect 
to  these  matters  in  the  constitutions,  but  a  tendency  in  certain 
directions  is  clear.     Details  must  be  sought  in  statutor}'  legislation. 
Taxes  must   be  uniform,  levied  and  collected  under  general  laws, 
and  for  public  purposes  only.     A  maximum  tax  rate  is  fixed,  vary- 
ing with  the  valuation  of  the  state,  and  a  maximum  debt  for  state 
and  locality,  beyond  which  amount  the  referendum  must  be  used. 
The  maximum  may  be  fixed  by  a  per  cent  of  the  assessed  valuation 
instead  of  a  specific  amount.     Some  authorize  an  income  tax,  others 
an  inheritance  tax  (over  half  the  states  now  use  this  form  of  tax) 
and  still  others  franchise  taxes  and  a  tax  on  the  capital  stock  of 
corporations ;  a  radical  amendment  of  this  sort  was  added  to  Minne- 
sota's constitution  in  1896.     These  special  forms  of  taxation  illus- 
trate a  strong  tendency  to  seek  for  the  state  sources  of  income 
apart  from  those  used  by  localities.     State  and  municipal  bonds 

'California,  Louisiana,  Michigan,  Missouri,  for  example. 


58  The  Annals  of  the  American  Academy 

arc  regularly  exempted  from  taxation,  and  provision  may  be  made 
allowing  to  new  industries  exemption  for  a  term  of  years  (Mississippi 
for  example) ,  or  there  may  be  a  contrary  provision  forbidding  such 
exemption.  Georgia  lengthily  defines  the  state's  sovereign  right 
in  taxation. 

The  system  of  assessment  is  justly  receiving  more  attention 
than  formerly,  but  is  a  troublesome  question  and  much  is  properly 
left  to  the  discretion  of  legislatures.  The  chief  provisions  are, 
state  and  county  boards  of  equalization,  and  in  a  few  states  (Louis- 
iana for  example)  a  special  board  to  assess  franchise  corporations. 

In  finance  careful  provisions  in  respect  to  bonded  indebtedness 
and  sinking  funds  are  characteristic  features.  The  safe  investment 
of  funds  is  a  vexed  question.  Two  states  at  least*  allow  investment 
of  school  funds  in  land  mortgages.  Prohibitions  are  common 
against  the  receiving  by  treasurers  of  profits  from  the  loan  of  funds 
in  their  hands.  Our  states  are  mostly  in  excellent  financial  con- 
dition and  this  is  largely  due,  in  the  case  of  the  newer  states  at 
least,  to  the  wise  pay-as-you-go  policy  enjoined  by  constitutions. 
Attention  has  already  been  called  to  the  governor's  control  over 
finance.  Virginia  in  its  new  constitution  tries  an  interesting  experi- 
ment in  providing  for  a  standing  auditing  committee  made  up  of 
five  members  of  the  general  assembly.  This  committee  is  to  have 
powers  of  inspection  over  all  officers  who  handle  state  funds,  may 
sit  after  adjotirnment,  and  reports  to  the  governor. 

Provisions  in  regard  to  state  ownership  of  franchises  or  natural 
monopolies  are  not  common.  New  York  provides  that  its  famous 
canal  system  shall  forever  remain  the  property  of  the  state,  and  in 
another  section  makes  the  same  provision  for  its  wild  forest  lands. 
Utah  has  a  better  worded  article  on  forestry.  Nebraska  reserves 
ownership  in  its  salt  springs.  The  western  mining  and  irrigating 
states  now  have  many  provisions  in  regard  to  the  use  of  the  waters 
of  the  state,  Wyoming  and  North  Dakota  making  the  waters  "the 
property  of  the  state."  Many  of  the  states  bordering  on  the  sea 
and  on  navigable  rivers  have  articles  on  tide  lands  and  riparian 
rights,  and  declare  their  policy  in  regard  to  the  use  of  the  waters.* 
North  Dakota  provides  that  "the  coal  lands,  including  lignite,  of  the 
state  shall  never  be  sold,  but  may  be  leased."     States  seem  not  yet 

'Idaho  and  South  Dakota.    Missouri  allows  county  school  funds  to  be  so  invested.  Washing, 
ton  by  amendment  1894  forbids  loans  of  school  funds  to  private  persons  or  corporations, 
*See  for  example,  Washington.  South  Carolina,  Louisiana,  Mississippi, 


Our  State  Constitutions  59 

to  have  a  clear  policy  in  regard  to  public  lands,  whether  to  sell 
them  in  severalty  or  to  retain  ownership  and  lease  the  lands. 
Wisconsin  and  South  Carolina  both  declare  that  the  people  "possess 
the  ultimate  property  in  and  to  all  lands  within  the  jurisdiction 
of  the  state." 

Education. — The  articles  on  education  found  in  the  constitu- 
tions vary  from  the  simple  paragraph  of  early  constitutions  to 
lengthy  provisions  sometimes  several  pages  in  length.  This,  how- 
ever, is  largely  due  to  the  necessity  of  arranging  for  the  disposition 
of  the  school  lands  so  generously  voted  to  the  states  by  congress. 
These  lands  are  generally  placed  under  the  charge  of  a  land  com- 
missioner or  board,  and  provisions  are  made  for  the  holding  or 
disposing  of  lands  and  the  investment  of  school  funds.  Special 
attention  is  paid  to  the  safety  and  proper  investment  of  these  funds, 
and  several  states'  provide  that  losses  through  neglect  or  dishonesty 
must  be  made  up  from  other  funds.  About  two-thirds  of  the  con- 
stitutions now  forbid  school  funds  to  be  used  in  aid  of  sectarian  or 
denominational  schools.  Many  have  done  this  under  instructions 
in  enabling  acts,  and  others  of  their  own  accord. 

Provision  is  generally  made  for  a  state  superintendent,  a  board 
of  education,  and  similar  officials  in  the  counties.  Attention  also 
is  given  to  the  organization  of  the  higher  institutions  of  learning. 
Localities  are  permitted  to  add  to  the  school  funds  by  special  tax, 
and  cities  to  maintain  and  control  their  schools  apart  from  the 
county  system.  There  are  many  differences  in  respect  to  the 
length  of  the  term,  to  compulsory  features,  to  matters  of  text  books, 
and  to  the  organization  of  separate  schools  for  white  and  colored. 

Labor. — The  growing  interest  in  labor  questions  begins  to 
find  expression  in  the  constitutions.  Bureaus  for  the  study  and 
preparation  of  labor  or  industrial  statistics  are  common.  So  are 
courts  or  boards  of  arbitration.  The  eight -hour  day  for  all  public 
work  is  fixed  in  four  constitutions,'  and  two  require  that  citizens  of 
the  United  States  only  shall  be  employed  on  public  works.  The 
right  of  recovering  damages  for  injury  is  safeguarded,®  the  "fellow- 
servant"  doctrine  modified,  and  contracts  declared  null  and  void 

•For  example  Iowa,  Nebraska,  North  Dakota,  South  Dakota. 

^California,  Idaho,  Montana,  Utah.  Colorado,  in  1902,  by  amendment,  made  eight  hours  a 
day's  labor  in  mines. 

*For  example,  Arkansas,  Colorado.  Kentucky,  Mississippi,  Montana,  Pennsylvania,  Vir- 
ginia, Wyoming. 


6o  The  Ajinals  of  the  American  Academy 

which  exempt  employers  from  liability.  Convict  labor  is  regulated 
so  as  not  to  compete  with  other  forms  (New  York  for  instance), 
and  boys  under  fourteen  (or  twelve)  are  forbidden  to  work  in 
mines.  Montana  wisely  made  the  age  sixteen  by  amendment,  1904. 
Wyoming  forbids  the  employment  of  girls  or  women  in  mines  at  all. 
Prohibitions  against  blacklists  and  Pinkerton  detectives  are  among 
the  curiosities  of  this  section. 

Miscellaneous. — In  view  of  the  unfortunate  political  conditions 
existing  in  many  states  most  of  the  constitutions  contain  more  or 
less  elaborate  provisions  against  briber}^  and  corruption.'  This 
involves  much  taking  of  oaths;  officials,  even  legislators,  must  take 
oath  that  they  have  not  attained  their  election  by  improper  means ; 
governors,  not  to  exert  improper  influence  on  legislators.^"  Free 
passes  are  now  forbidden  by  constitution  in  at  least  thirteen  states ;" 
log  rolling, ^^  lobbying,  betting  at  elections,  intimidations  of  electors 
by  emplo3'ers,  and  sharing  in  contracts  while  in  office,  are  all  pro- 
hibited in  one  or  more  of  the  constitutions.  Dueling,  though  well 
nigh  obsolete,  is  forbidden  in  about  two-thirds  of  the  states,  and  in 
most  is  a  disqualification  for  office.  Four  states  require  the  duel 
oath ;  Texas  combines  it  with  the  bribery  oath.  Mississippi  requires 
each  legislator  to  swear  to  read  the  constitution,  or  to  have  it  read 
to  him,  presumably  if  illiterate! 

About  half  of  the  constitutions  now  secure  married  women 
in  their  right  to  separate  estates.  This  provision  is  often  found 
under  homestead  exemption,  for  which  in  some  form  or  other 
provisions  are  also  common.  The  newer  constitutions  pay  much 
incidental  attention  to  matters  of  social  morals,  such  as  the  pro- 
hibition of  lotteries, ^^  regulation  of  intemperance,  provisions  for 
local  option,  and  authorization  of  penal  reforms.  South  Carolina 
prohibits  prize  fighting,  gambling  or  betting  (for  officials)  and  has  a 
unique  provision  against  lynching.  There  is  a  rather  general  pro- 
vision for  institutions  of  charity,  and  for  state  boards  of  charity 
and  correction,  either  with  powers  of  visitation  and  recommenda- 
tion, or  of  control. 

'See  Alabama,  Delaware,  Kentucky  and  New  York  as  illustrations. 
'"Nine  states  require  bribery  oaths. 

"Alabama,  Arkansas,  California,  Florida,    Idaho,    Kentucky,    Louisiana,    Maine,    Missis- 
sippi, New  York,    South  Dakota,  Washington  and  Wisconsin. 
"The  exchange  of  votes  by  legislators. 
''This  is  found  in  about  thirty-five  constitutions. 


I 


Our  Stale  Constitutions  6i 

Up  to  1898  four  states"  had  codified  their  written  and  un- 
written law."  Codifications  of  statutory  law  are,  of  course,  much 
more  common.  Five  states^"  by  constitution  authorize  their  prep- 
aration. Michigan  orders  a  cornpilation  only.  There  are  pro- 
visions for  the  codification  of  procedure  in  four  states"  and  the 
constitutions  of  Mississippi  and  Kentucky  each  provide  for  a  com- 
mission of  expert  lawyers  to  prepare  such  general  laws  as  are 
necessary  to  put  the  new  constitution  into  effect. 

"Georgia,  California,  North  Dakota,  South  Dakota. 
1*27   Am.  Law   Review,    SS2. 

'•Indiana,  Louisiana,  Missouri,  South  Carolina,  Texas. 
"Indiana,  Louisiana,  Ohio,  South  Carolina. 


CHAPTER  X. 

Religious  Provisions  of  the  State  Constitutions. 

The  principle  of  religious  liberty  is  one  of  the  most  striking 
features  of  American  democracy.  Foreign  students  of  our  institu- 
tions regularly  manifest  deep  surprise  at  the  practical  workings  of 
the  theory  of  the  separation  of  church  and  state.  Chapter  CVI 
for  instance  of  Bryce's  American  Commonwealth  illustrates  this 
attitude  of  mind.  Our  national  constitution  took  advanced 
ground  when  it  forbade  congress  to  establish  religion  or  to  prohibit 
its  free  exercise,  and  recognized  no  religious  test  as  a  qualification 
for  office  or  public  trust. ^  Some  of  our  states  even  yet  have  not 
advanced  so  far.  There  are  still  survivals  in  the  constitutions  of 
that  earlier,  more  intolerant  spirit  which  now  seems  so  strangely 
out  of  place.  The  religious  provisions  of  our  state  constitutions 
may  roughly  be  divided  into  two  classes:  (i)  those  aiming  to 
establish  religious  freedom;  and  (2)  those  involving  some  recogni- 
tion of  religion.  A  statement  of  each  of  these  in  turn  may  present 
some  interesting  features. 

I.  All  forty-five  constitutions  in  plain  terms  provide  for 
freedom  of  worship  but  vary  considerably  in  methods  of  expression. 
Michigan,  for  example,  states  that  "The  legislature  shall  pass  no  law 
to  prevent  any  person  from  worshiping  Almighty  God  according  to 
the  dictates  of  his  own  conscience;"  North  Dakota,  by  contrast, 
provides  that  "The  free  exercise  and  enjoyment  of  religious  pro- 
fession and  worship,  without  discrimination  or  preference,  shall  be 
forever  guaranteed  in  this  state."  Utah,  after  a  similar  provision, 
adds,  emphatically,  "There  shall  be  no  union  of  church  and  state, 
nor  shall  any  church  dominate  the  state  or  interfere  with  its 
functions."  Other  constitutions  again,  like  those  of  Massachusetts, 
Rhode  Island,  and  New  Hampshire,  have  lengthy  provisions,  the 
last  named  state  employing  two  hundred  and  seventy-three  words 
for  Article  VI  of  its  Bill  of  Rights.  The  additional  matter  as  a  rule 
amplifies  the  principle  in  detail  by  specifying  that  no  preference 
shall  be  given  by  law  to  religious  societies ;  that  no  person  shall  be 
compelled  against   his  will  to   contribute  toward  their  support, 

•Amendment  I  and  last  clause  Article  VI. 

(62) 


Our  State  Constitutions  63 

nor  to  attend  services ;  that  all  persons  shall  be  free  to  profess  and 
maintain  by  argument  his  religious  beliefs ;  and  that  ever}^  religious 
denomination  shall  be  protected  in  the  peaceable  enjoyment  of  its 
own  mode  of  worship.  Rhode  Island  has  an  eighty  word  whereas, 
as  preface  to  its  provision,  and  states  therein  its  historic  argument 
for  religious  liberty.  Nineteen  constitutions  however,  are  careful 
to  say  in  varying  phraseology  that  liberty  of  conscience  shall  not 
be  construed  so  as  to  excuse  acts  of  licentiousness,  nor  justify  prac- 
tices inconsistent  with  the  peace  and  safety  of  the  state.  Many 
provide  that  liberty  of  conscience  shall  not  be  construed  to  dispense 
with  oaths  or  affirmations,  and  Idaho,  Montana,  and  Utah  expressly 
except  polygamous  marriage  from  a  guaranty  of  religious  freedom. 

The  constitutions  generally  provide  that  no  limitations  shall 
be  placed  on  an  individual's  rights  because  of  his  religious  beliefs. 
Seven  states  for  example  prohibit  the  denial  on  such  grounds  of 
civil  rights;  eight  other  states  put  it  "No  civil  or  political  rights 
shall  be  denied;"  and  twenty-one  states  declare  that  no  religious 
test  shall  be  required  as  a  qualification  for  any  office  or  public 
trust.  Four  states^  specify  that  no  religious  test  shall  ever  be 
required  as  a  qualification  for  voting.  In  judicial  matters  nine 
states  forbid  any  religious  test  as  a  qualification  for  jurors,  and 
twenty  states  safeguard  witnesses  in  the  same  way.  Oregon  and 
Washington  add  to  these  provisions,  "nor  be  questioned  in  any 
court  of  justice  touching  his  religious  belief,  to  affect  the  weight  of 
his  testimony."  On  the  other  hand  two  constitutions,  insert  a 
provision  inherited  from  the  political  theories  of  Cromwell's  time.* 
Maryland  bluntly  provides  that  "No  minister  or  preacher  of  the 
gospel,  or  of  any  religious  creed  or  denomination,  shall  be  ehgible 
as  senator  or  delegate."  Tennessee  is  far  more  courteous  in  its 
similar  provision.  "Whereas,  ministers  of  the  gospel  are,  by  their 
profession,  dedicated  to  God  and  the  care  of  souls,  and  ought  not  to 
be  diverted  from  the  great  duties  of  their  functions ;  therefore,  no 
minister  of  the  gospel  or  priest  of  any  denomination  whatever, 
shall  be  eligible  to  a  seat  in  either  house  of  the  legislature." 

Freedom  of  conscience  is  also  safeguarded  by  exempting  from 
military  duty  those  who  are  conscientiously  opposed  to  war. 
Twenty-three  states  have  provisions  of  this  sort,  varying  from  the 

^Kansas,  Minnesota,  Utah,  West  Virginia. 
•For  example,  Harrington's  Oceana. 


64         .  The  Annals  of  the  American  Academy 

quaint  phraseology  of  Maine,  "Persons  of  the  denominations  of 
Quakers  and  Shakers,  .  .  .  and  ministers  of  the  gospel  may 
be  exempted  from  military  duty,"  to  the  businesslike  statement 
of  Washington.  "No  person  or  persons  having  conscientious 
scruples  against  bearing  arms  shall  be  compelled  to  do  military 
duty  in  time  of  peace:  Provided,  such  person  or  persons  shall  pay 
an  equivalent  for  such  exemption." 

Some  of  our  states  by  experience  have  found  out  that  religious 
sects  can  be  indirectly  supported  from  public  funds  by  grants  to 
religious  philanthropic  institutions,  especially  hospitals  and 
orphan  asylums.  Twenty-three  states  recognize  the  danger  of 
this  policy  and  forbid  in  more  or  less  vigorous  terms  such  grants. 
A  typical  provision  of  this  sort  (Michigan)  reads:  "No  money  shall 
be  appropriated  or  drawn  from  the  treasury  for  the  benefit  of  any 
religious  sect  or  society,  theological  or  religious  seminary,  nor  shall 
property  belonging  to  the  state  be  appropriated  for  any  such  pur- 
pose." Montana  has  a  still  stronger  prohibition;  "No  appropria- 
tion shall  be  made  for  charitable,  industrial,  educational  or  benevo- 
lent purposes  to  any  person,  corporation  or  community  not  under 
the  absolute  control  of  the  state,  nor  to  any  denominational  or 
sectarian  institution  or  association."  Lengthy  provisions  of  a 
similar  nature, but  with  certain  provisos,  maybe  found  in  California, 
Article  IV,  sections  22  and  30;  Louisiana,  Article  53,  and  Virginia, 
section  67.  A  kindred  provision  forbidding  aid  to  sectarian  educa- 
tional institutions  may  be  found  in  twenty-nine  constitutions. 
Article  253  of  the  Louisiana  constitution  contains  this  provision 
in  simple  form,  "No  funds  raised  for  the  support  of  the  public 
schools  of  the  state  shall  be  appropriated  to  or  used  for  the  support 
of  any  private  or  sectarian  schools."  A  safer  and  far  more  em- 
phatic form  may  be  seen  in  Utah's  constitution,  Article  X,  sec- 
tion 13:  "Neither  the  legislature  nor  any  county,  city,  town, 
school  district  or  other  public  corporation,  shall  make  any  appropri- 
ation to  aid  in  the  support  of  any  school,  seminary,  academy,  col- 
lege, university,  or  other  institution,  controlled  in  whole,  or  in 
part  by  any  church,  sect,  or  denomination  whatever."  This  pro- 
vision is  in  eight  constitutions  enlarged  by  an  injunction  against 
the  teaching  of  sectarian  doctrines:  Wyoming  says,  "nor  shall 
any  sectarian  tenets  or  doctrines  be  taught  or  favored  in  any  public 
school  or  institution  that  may  be  established  under  this  constitu- 


Otir  State  Constitutions  65 

tion;"  Wisconsin  expressly  mentions  its  university,  and  California 
also  desires  its  university  to  be  kept  "entirely  independent  of  all 
sectarian  influence."  Nebraska  and  South  Dakota  unite  in  a 
provision  which  in  the  constitution  of  the  last  named  state  reads 
as  follows:  "Nor  shall  the  state,  or  any  county  or  municipality 
within  the  state,  accept  any  grant,  conveyance,  gift  or  bequest  of 
lands,  money  or  other  property  to  be  used  for  sectarian  purposes." 
The  five  mining  states,*  curiously  enough  substantially  agree  in 
providing  that,  "No  religious  test  or  qualification  shall  ever  be 
required  of  any  person  as  a  condition  of  admission  into  any  public 
educational  institution  of  this  state,  either  as  teacher  or  student ; 
and  no  teacher  or  student  of  any  such  institution  shall  ever  be 
required  to  attend,  or  participate  in,  any  religious  service  whatever 
(Colorado,. IX,  8).  Kentucky  has  it  in  the  form,  "nor  shall  any 
man  be  compelled  to  send  his  child  to  any  school  to  which  he  may 
be  conscientiously  opposed."  Mississippi,  however,  in  providing 
for  religious  liberty  expressly  says  that,  "The  rights  hereby  secured 
shall  not  be  construed  to  exclude  the  Holy  Bible  from  use  in  any 
public  school  of  this  state."  Perhaps,  however,  the  most  curious 
of  this  series  of  prohibitions  is  found  in  the  constitutions  of  Michigan 
and  Oregon,  which  provide  that  no  money  shall  be  appropriated 
for  the  payment  of  any  religious  services  in  either  house  of  the 
legislature.  The  odd  part  of  the  Michigan  provision  is  that  in 
the  same  paragraph  forbidding  religiovis  services  for  the  legislature 
it  authorizes  the  employment  of  a  chaplain  for  the  state  prison; 
apparently  its  inmates  were  considered  more  susceptible  to  reli- 
gious influences. 

Unless  there  be  a  prohibition  in  the  constitution  a  legislature 
under  its  general  lawmaking  powers  may  exempt  property  used 
for  religious  purposes  from  taxation.  For  this  reason  most  con- 
stitutions are  silent  in  respect  to  such  exemptions.  Eleven  states, 
however,  expressly  authorize  their  legislatures  to  exempt  such 
property.  A  few  states  have  some  curious  provisions  in  regard  to 
this  matter.  Virginia  and  West  Virginia  agree  in  forbidding  a 
charter  of  incorporation  to  any  church  or  religious  denomination, 
but  authorize  the  assemblies  to  secure  the  title  to  church  property 
so  as  to  hold  it  for  designated  purposes.  Missouri  allows  religious 
corporations  to  be  established  under  general  law  but  only  for  the 

'Colorado,  Idaho,  Montana,  Wyoming,  Utah. 


66  The  Annals  of  the  American  Academy 

purpose  of  holding  title  to  not  over  five  acres  of  land  (one  acre 
within  a  city)  and  buildings  thereon,  if  used  for  religious  purposes. 
Maryland  in  a  lengthy  article  in  its  bill  of  rights  (Article  38) 
forbids  every  gift,  sale  or  devise  for  religious  purposes  without  the 
prior  or  subsequent  sanction  of  the  legislature,  but  excepts  from 
this  provision  land  not  exceeding  five  acres  and  its  buildings. 
Mississippi  goes  farthest  of  all  in  prohibiting  every  devise,  legacy, 
gift  or  bequest  to  a  religious  body  or  corporation,  and  authorizes 
the  heir-at-law  to  take  such  property  "as  though  no  testamentary 
disposition  had  been  made."  As  a  final  illustration  of  the  regula- 
tion of  property  used  for  religious  purposes,  we  find  Kansas  antici- 
pating modern  French  policy  by  providing  that,  "The  title  to  all 
property  of  religious  corporations  shall  vest  in  trustees,  whose 
election  shall  be  by  the  members  of  such  corporations." 

II.  The  provisions  in  constitutions  that  involve  some  recogni- 
tion of  religion  are  simple  and  comparatively  few  in  number.  The 
most  important  of  these  is  a  formal  acknowledgment  of  the  good- 
ness of  God.  Thirty-nine  constitutions  place  in  their  preambles 
this  recognition;  three,  having  no  preamble,  omit  it  (West  Vir- 
ginia, New  Hamphire,  Vermont) ;  and  three  make  no  reference  to 
God  in  their  preambles  (Michigan,  Tennessee,  Oregon) .  In  twenty- 
nine  preambles  the  term  Almighty  God  is  used;  three  use  the  term 
God;  and  three.  Supreme  Ruler  of  the  Universe.  The  following 
terms  each  occur  once  only:  Creator,  Supreme  Being,  Sovereign 
Ruler  of  the  Universe,  Sovereign  Ruler  of  Nations,  and  Great  Legis- 
lator of  the  Universe.  The  most  common  form  is  a  simple  acknowl- 
edgment of  gratitude  for  the  enjoyment  of  rights  and  liberty 
(twepty  constitutions) ;  twelve  others  add  to  that  an  invocation  or 
a  statement  of  reliance  on  Him  for  blessings  and  guidance;  four 
use  the  invocation  or  statement  of  reliance  only,  two  use  the 
phrase,  "with  profound  reverence  for  the  Supreme  Ruler  of  the 
Universe,"  and  Delaware  ascribes  to  Divine  Goodness  the  fact  that 
"all  men  have  by  nature  the  rights  of  worshiping  and  serving 
their  Creator  according  to  the  dictates  of  their  consciences."  The 
following  quotations  illustrate  the  usual  phraseology:  "Grateful 
to  Almighty  God  for  our  freedom;"  "Grateful  to  Almighty  God, 
and  invoking  his  blessing  on  our  work;"  "Grateful  to  Almighty 
God  and  humbly  invoking  His  guidance;"  "Humbly  invoking  the 
blessings  of  Almighty  God." 


Our  State  Constitutions  67 

Three  constitutions,^  in  their  bills  of  rights  quote  from  the 
Declaration  of  Independence,  asserting  that  men  are  free  and  equal 
and  endowed  by  their  Creator  with  certain  inalienable  rights. 
Similiar  provisions  in  other  constitutions  omit  the  word  Creator. 

All  of  the  forty-five  constitutions  provide  that  the  officers  of 
the  state  take  oath  or  affirmation  on  entering  office  and  as  a  rule 
give  the  oath  or  affirmation  verbatim.  In  eighteen  constitutions 
the  oath  ends  with  the  sentence  "So  help  me  God"  (Vermont  and 
Connecticut  use  the  second  person).  Seven  of  these  substitute, 
in  case  of  an  affirmation,  the  phrase  "under  the  pains  and  penalties 
of  perjury."  Four  constitutions  also  provide  for  an  oath  or  affirm- 
ation at  registration,  or  if  challenged  when  voting. 

Among  the  most  curious  survivals  of  religious  intolerance  are 
those  found  in  eight  constitutions  regarding  qualifications  for 
office.  Both  Arkansas  and  Mississippi  expressly  state  that  no 
religious  test  shall  be  required  as  a  qualification  for  office;  yet  in 
later  articles  provide  that  no  person  who  denies  the  existence  of 
God  shall  hold  any  office;  and  Arkansas  adds,  "nor  be  competent 
to  testify  as  a  witness  in  any  court."  Maryland,  North  Carolina, 
South  Carolina,  and  Texas  likewise  refuse  office  under  similar  con- 
ditions, but  Maryland  also  adds  that  a  witness  or  juror  must 
believe  "in  the  existence  of  God,  and  that  under  His  dispensation 
such  person  will  be  held  morally  accountable  for  his  acts,  and  be 
rewarded  or  punished  therefor  in  this  world  or  the  world  to  come." 
Pennsylvania  and  Tennessee,  however,  go  still  farther  by  requiring 
as  a  qualification  for  any  office  a  lielief  in  the  being  of  God  and  in  a 
future  state  of  rewards  and  punishments.  This  provision  of  Ten- 
nessee's constitution  must  be  a  lineal  descendant  of  a  provision  of 
the  constitution  submitted  by  the  Rev.  Samuel  Houston  in  1785 
for  the  State  of  Frankland  (Tennessee).     It  read  as  follows: 

No  person  shall  be  eligible  or  capable  to  serve  in  any  office  of 
this  state  who  denies  any  of  the  following  propositions,  viz.: 
(i)  That  there  is  one  living  and  true  God,  the  Creator  and  Gov- 
ernor of  the  Universe.  (2)  That  there  is  a  future  state  of  rewards 
and  punishments.  (3)  That  the  scriptures  of  the  Old  and  New 
Testaments  are  given  by  divine  inspiration.  (4)  That  there  are 
three  divine  persons  in  the  Godhead,  coequal  and  coessential. 

This  constitution  fortunately,  was  not  accepted  by  the  con- 
vention. 

•Alabama,  Indiana,  North  Carolina. 


68  The  Annals  of  the  American  Academy 

Miscellaneous  Provisions. — The  constitution  of  Virginia  is  the 
only  one  to  mention  the  Young  Men's  Christian  Association  (sec- 
tion 183),  Mississippi  authorizes  reHgious  worship  for  convicts 
(section  225),  and,  along  with  South  Carolina,  allows  ministers  of 
the  gospel  to  register  and  vote  after  a  shorter  time  requirement 
than  other  classes  of  persons.  There  are  no  longer  any  religious 
restrictions  on  the  exercise  of  suffrage.  North  Carolina  recognizes 
that,  "provision  for  the  poor,  the  unfortunate,  and  orphan,  is  one 
of  the  first  duties  of  a  civilized  and  Christian  state,"  and  Tennessee 
provides  that  "No  person  shall  in  time  of  peace  be  required  to  per- 
form any  service  to  the  public  on  any  day  set  apart  by  his  religion 
as  a  day  of  rest."  Delaware  asserts  that  "it  is  the  duty  of  all  men 
frequently  to  assemble  together  for  the  public  worship  of  Almighty 
God;  and  piety  and  morality,  on  which  the  prosperity  of  communi- 
ties depends,  are  thereby  promoted."  Vermont  goes  still  farther 
in  saying  that  "every  sect  or  denomination  of  Christians  ought  to 
observe  the  Sabbath  or  Lord's  Day,  and  keep  up  some  sort  of  reli- 
gious worship,  which  to  them  shall  seem  most  agreeable  to  the 
revealed  will  of  God."  It  also  orders  its  legislature  to  encourage 
societies  organized  for  the  advancement  of  religion.  Massachusetts 
in  its  eleventh  amendment  asserts  that  "the  public  worship  of  God 
and  instructions  in  piety,  religion,  and  morality,  promote  the  happi- 
ness and  prosperity  of  a  people  and  the  security  of  a  republican 
government."  In  Chapter  V  also  it  declares  that  "our  wise  and 
pious  ancestors  .  .  .  laid  the  foundation  of  Harvard  College, 
in  which  university  many  persons  of  great  eminence  have,  by 
the  blessing  of  God,  been  .  .  .  qualified  for  public  employ- 
ments, both  in  church  and  state;"  and  adds  that  "the  encourage- 
ment of  arts  and  sciences,  and  all  good  literature,  tends  to  the 
honor  of  God  and  the  advantage  of  the  Christian  religion."  Not- 
withstanding the  recommendations  of  its  last  two  constitutional 
conventions,  New  Hampshire  still  retains  its  Puritanic  article  on 
Evangelical  Protestantism.  The  first  sentence  reads  as  follows: 
"As  morality  and  piety,  rightly  grounded  on  evangelical  principles, 
will  give  the  best  and  greatest  security  to  government,  and  will  lay 
in  the  hearts  of  men  the  strongest  obligations  to  due  subjection, 
and  as  the  knowledge  of  these  is  most  likely  to  be  propagated 
through  a  society  by  the  institution  of  the  public  worship  of  the 
Deity  and  of  public  instruction  in  morality  and  religion,  therefore, 


Oiir  State  Constitutions  69 

to  promote  these  important  purposes,  the  people  of  this  state  have  a 
right  to  empower,  and  do  hereby  fully  empower,  the  legislature  to 
authorize,  from  time  to  time,  the  several  towns,  parishes,  bodies 
corporate,  or  religious  societies  within  this  state  to  make  adequate 
provision,  at  their  own  expense,  for  the  support  and  maintenance 
of  public  Protestant  teachers  of  piety,  religion,  and  morality." 

As  the  foregoing  paragraphs  include  all  the  religious  provisions 
of  American  constitutions  now  in  force,  our  constitutional  attitude 
toward  religion  is  plainly  manifest.  Freedom  of  conscience  is 
fully  guarantied,  and  the  few  intolerant  limitations  on  rights  are 
in  fact  probably  obsolete.  Whatever  power  religion  has  in  the 
United  States  over  the  lives  of  men  is  due  to  its  inherent  strength, 
not  to  a  support  derived  from  the  state. 


CHAPTER  XI. 
Popular  Representation  in  State  Legislatures. 

The  famous  Northwest  Ordmance  of  1787,  in  article  second  of 
its  compact,  declares  that,  "The  inhabitants  of  the  said  territory 
shall  always  be  entitled  to  the  benefits  of  ...  a  proportionate 
representation  of  the  people  in  the  legislature."  This  principle  of 
popular  representation  may  now  be  looked  on  as  a  settled  American 
policy  and  departures  from  it  as  exceptions  to  the  general  rule.  In 
our  state  constitutions  this  principle  is  embodied  in  the  command 
that  representation  in  both  legislative  houses  shall  be  based  on 
population,  and  a  readjustment  made  decennially,  after  the  taking 
of  either  national  or  state  census.  Legislatures,  to  be  sure,  in 
carrying  out  this  injunction,  may  be  to  some  extent  unfair  in  their 
apportionments,  but  that  is  a  matter  of  discretion  and  expediency, 
the  remedy  for  which  should,  in  case  of  gross  inequalities,  lie  in  the 
courts. 

While,  however,  the  principle  of  equal  representation  is  em- 
bodied in  our  state  constitutional  system,  there  are  exceptions,  and 
some  of  these  are  serious  departures  from  the  principle.  In  a  few 
states  at  least  a  system  of  representative  democracy  does  not  exist, 
but  rather  a  form  of  oligarchy.  These  modifications  are  generally 
survivals  from  an  earlier  but  antiquated  system,  retained  for  parti- 
san purposes ;  or  they  may  be  intended  as  a  sort  of  guaranty  for  the 
minority  as  against  a  powerful  majority.  In  form  they  are  consti- 
tutional provisions  aiming  to  secure  representation  to  districts, 
county  or  town,  irrespective  of  population;  or,  on  the  other  hand, 
to  place  limitations  on  city  representation  as  against  the  represen- 
tation of  the  rural  population.  These  provisions  are  fourfold: 
there  are  (i)  provisions  that  each  town  or  county  have  one  or  more 
members;  (2)  that  no  city  or  county  have  more  than  a  fixed  num- 
ber or  fraction;  (3)  a  complex  ratio  is  specified  which  in  effect  may 
discriminate  against  some  in  favor  of  other  localities;*  and  (4) 
the  districts  are  themselves  fixed  by  constitution  and  limitations 
placed  on  legislative  power  to  alter  these. 

•For  ratio  provisions  see  constitutions  of  Iowa,  Maine,  Maryland,  Missouri,  North  Carolina, 
New  Hampshire,  New  York,  Ohio,  Pennsylvania  and  West  Virginia. 

(70) 


Our  State  Constitutions  71 

This  chapter  aims  to  present  in  detail  the  systems  of  representa- 
tion in  our  several  state  legislatures,  from  the  standpoint  of  equal 
popular  representation.  As  a  common  basis  for  this  study  the 
federal  census  of  1900  will  be  used,^  the  county  taken  as  the  unit 
of  representation,  and  an  apportionment  be  considered  as  equal 
when  the  population  of  a  district  ranges  anywhere  from  a  half  ratio 
to  a  ratio  and  a  half.  In  a  few  constitutions  a  different  fraction 
of  a  ratio  may  be  fixed  (two-thirds  for  instance) ;  or  the  popu- 
lation taken  into  account  may  be  the  voting  population,  or  the 
census  population  less  aliens;  but  these  local  differences  will  be 
disregarded  for  the  sake  of  uniformity.  In  New  England  the  town 
is  so  obviously  the  unit  that  the  comparison  will  be  made  from 
both  units,  town  and  county. 

I.  In  sixteen  of  the  states  the  constitutions  provide  for  appor- 
tionment in  both  houses  on  the  basis  of  population,  a  reapportion- 
ment after  each  census,  and  place  no  restrictions  on  this  basis. 
These  states  therefore  are  broadly  democratic  in  this  respect.  The 
list,^  it  will  be  noted,  includes  states  from  all  sections  of  the  United 
States. 

II.  In  eighteen  states,  while  the  census  population  is  made  the 
basis,  there  are  certain  limitations  on  the  representation  in  one,  or 
it  may  be  in  both  houses,  that  modify  somewhat  the  principle. 
These,  though  on  the  whole  unimportant,  should  yet  be  explained 
in  detail: 

Alabama.  The  constitution  provides  that  each  county  shall 
have  at  least  one  member  in  the  house.  There  are  sixty -six 
counties  in  the  state  but  each  of  these  has  a  population  at  least 
over  one-half  of  the  ratio.  There  are  therefore  no  limitations  in 
fact. 

Arkansas  has  the  same  provision,  but  though  there  are 
seventy-five  counties,  each  has  at  least  one-half  the  ratio. 

Florida  provides  that  each  county  have  at  least  one  in  the 
house,  and  no  county  more  than  three.  Of  its  forty-five  counties 
four  have  less  than  one-half  the  ratio  and  hence  are  over-repre- 
sented.    The  four  largest  counties  limited  by  constitution  to  three 

'But  in  New  York  the  state  census  of  1905. 
■  ^California,    Colorado,   Illinois,    Indiana,    Kentucky,   Massachusetts,  Michigan,  Minnesota, 
Nebraska,  Nevada,  North  Dakota,  Oregon,  South  Dakota,  Tennessee,  Washington  and  Wiscon- 
sin. 


']2  The  Annals  of  the  American  Academy 

each,  are  entitled  by  population  to  eighteen  members  and  hence  are 
under-represented . 

Idaho  requires  that  at  least  one  member  be  assigned  in  the 
house  to  each  county,  but  of  its  twenty-one  counties  none  has  less 
than  one-half  the  ratio. 

loiva  requires  that  each  county  have  at  least  one  in  the 
house,  and  provides  a  ratio  which  discriminates  against  the  thickly 
settled  counties.  Of  its  ninety -nine  counties  fifty -eight  are  below 
the  population  ratio,  three  of  these  are  below  the  one-half  ratio, 
and  of  its  larger  counties  thirteen,  to  which  are  assigned  twenty -two 
members,  should  have  by  population  thirty-three  members.  This 
state  illustrates  the  fact  that  if  the  constitution  fixes  the  number 
of  members,  over-representation  on  one  side  involves  under -repre- 
sentation on  the  other. 

Louisiana  in  its  constitution  of  1898  assigned  membership 
to  both  houses  by  districts  designated,  but  provided  for  a  reappor- 
tionment in  1902  on  the  basis  of  the  federal  census,  but  with  the 
stipulation  that  each  parish  (county)  and  each  ward  of  New 
Orleans  should  have  at  least  one  member.  The  assembly  reappor- 
tioned the  state  July  8,  1902.  Under  the  condition  set  there 
are  twelve  parishes  below  the  ratio  but  above  one-half,  and  three 
parishes  whose  populations  fall  below  one-half  the  ratio.  As  these 
have  a  member  a  piece,  four  other  parishes  in  consequence  have  to 
lose  one  each  from  their  proper  quota.  The  city  of  New  Orleans 
however,  has  its  full  proportion  of  twenty-four  members. 

Mississippi  also  defines  by  constitution  its  districts  for  both 
houses  and  provides  for  reapportionment  after  each  federal  census, 
but  with  the  proviso  that  each  county  shall  have  at  least  one  mem- 
ber in  the  house.  In  the  last  legislative  apportionment  one  county 
only  falls  below  the  half  ratio,  though  ten  districts  are  assigned  one 
each  in  excess  of  their  pro  rata,  and  ten  districts  correspondingly 
lose  one  each.  This,  however,  is  within  legislative  discretion  and 
is  not  due  to  constitutional  requirement. 

Montana  provides  that  each  county  shall  have  one  member 
only  in  the  Senate.  Of  its  twenty-four  counties  in  1900  (there  are 
twenty-six  now)  six  were  below  one-half  of  the  ratio  and  four 
counties,  which  by  population  were  entitled  to  twelve  members, 
had  but  four.  As  Montana  in  area  is  the  third  largest  state  in  the 
Union,  it  is  easy  to  see  through  multiplication  of  new  counties 


Our  State  Constitutions  73 

the  possible  development  of  a  "rotten  borough"  system  within 
a  generation  or  two,  unless  this  condition  should  be  stricken  from 
the  constitution. 

New  York*  in  article  III,  section  4,  of  its  constitution  places 
many  restrictions  about  the  apportionment  of  its  senators,  and  in 
effect  modifies  somewhat  the  principle  of  popular  representation 
in  this  body.  The  difference,  however,  is  slight.  District  two, 
which  is  assigned  one,  is  by  population  entitled  to  two.  Kings 
county,  which  has  eight,  should  have  nine,  and  New  York  county 
is  entitled  to  fifteen  but  has  twelve.  Provision  is  made  that  no 
county  shall  have  more  than  one-third  of  all  the  senators,  and  no  two 
adjoining  counties  more  than  one-half,  but  these  maxima  do  not 
as  yet  appl}'-  to  New  York  and  Kings  counties. 

Section  5  provides  a  ratio  and  other  regulations  for  the  appor- 
tionment of  assemblymen.  Among  these  provisions  is  found  the 
familiar  requirement  that  every  county  (except  Hamilton)  shall 
have  at  least  one  member  in  the  assembly.  As  the  house  ratio 
by  population  is  53,782  this  requirement  makes  havoc  with  popular 
representation.  Seven  districts  fall  below  the  half  ratio  and  twenty- 
five  are  between  one-half  and  the  full  ratio.  In  addition  to  these 
single-member  districts,  two  of  the  larger  districts  have  a  represen- 
tative each  too  many.  The  over-representation  of  these  forty -three 
districts  necessitates  as  usual  the  under-representation  of  the 
largest  districts.  Kings  county,  which  by  population  should  have 
twenty-five,  has  twenty-three;  and  New  York  county  should  add 
nine  to  its  allotment  of  thirty-five  members. 

North  Carolina  modifies  equal  representation  in  the  house 
by  defining  in  constitution  the  ratio,  and  by  the  requirement  that 
each  county  must  have  at  least  one  representative.  Of  the  ninety- 
seven  counties  forty  fall  below  the  population  ratio  and  nine  of 
these  below  the  half  ratio.  This  gain  for  the  counties  of  smaller 
population  is  made  up  by  corresponding  losses  to  the  counties  of 
larger  population.  Fourteen  counties  should  have  an  extra  mem- 
ber each,  above  the  number  assigned  by  the  apportionment  of  1901. 

Ohio  also  has  the  familiar  requirement  that  each  county  shall 
have  at  least  one  member  in  the  house  (amendment  1903),  and  also 
fixes  a  ratio  in  the  constitution  which  complicates  the  apportion- 
ment.    There  is,  however,  no  maximum  fixed  by  constitution  for 

^Apportionment  of  May  14,  rgo6,  based  on  state  census  of  1905. 


74  The  Annals  of  the  American  Academy 

the  inembership  of  the  house,  and  in  consequence,  while  there  is 
over-representation  for  the  counties  of  small  population,  there  is  no 
under-representation  for  the  larger  counties.  By  the  apportion- 
ment of  1905  there  are  one  hundred  twenty-one  members,  and  the 
five  counties  that  contain  a  population  each  over  100,000  have 
their  proportionate  share,  namely,  thirty-two  members.  Of  the 
remaining  eighty-three  counties  sixty-one  are  below  the  ratio,  and 
ten  of  these  below  the  half  ratio.  By  population  these  eighty-three 
counties  are  entitled  to  just  eighty-three  members,  but  in  fact  have 
eighty-nine,  as  the  six  largest  of  them  are  assigned  two  each. 

Pennsylvania  by  constitution  provides  that  its  fifty  senators 
be  assigned  in  proportion  to  population,  but  with  the  proviso  that 
no  city  or  county  shall  have  more  than  one-sixth.  This  limits 
Philadelphia  to  eight  members,  though  by  population  entitled  to 
ten. 

For  the  house  a  ratio  is  fixed  by  constitution  and  provision 
made  that  each  county  have  at  least  one  member.  The  constitu- 
tion sets  no  maximum  to  the  membership  and  this  by  last  appor- 
tionment was  fixed  at  two  hundred  and  seven.  If  the  population 
ratio  were  used,  the  thirteen  large  counties  including  the  city  of 
Philadelphia,  would  have  one  hundred  twenty  members  instead 
of  one  hundred  sixteen,  four  counties  losing  one  each.  Of  the 
remaining  fifty-four  counties  sixteen  are  below  the  ratio,  and  five 
of  these  below  the  half  ratio.  These  five  by  population  should 
have  two  members  only  instead  of  five. 

South  Carolina  requires  that  each  county  have  but  .  one 
member  in  the  senate.  Of  the  forty  counties  twenty-five  fall  below 
the  ratio,  and  one  below  the  half  ratio.  The  fifteen  counties  con- 
taining each  a  population  over  the  ratio  should  have  twenty-one 
members,  and  hence  lose  six  to  the  smaller  counties.  By  constitu- 
tion each  county  also  must  have  at  least  one  in  the  house,  but  all 
the  counties  have  populations  above  the  house  ratio. 

Texas  has  a  small  senate  of  thirty-one  members,  and 
provides  by  constitution  that  no  single  county  may  have  more  than 
one  member.  In  fact,  however,  no  county  has  a  population  in 
excess  of  the  ratio  and  there  is  therefore  no  real  limitation. 

Utah  has  a  requirement  that  each  county  have  at  least  one 
in  the  house.  Of  its  twenty-seven  county-districts  fifteen  are 
below  the  ratio  and  seven  of  these  below  the  half  ratio.     The  more 


Our  State  Constitutions  75 

populous  districts  must  therefore  lose  their  proper  proportion. 
Five  districts  lose  one  each,  and  one  (Salt  Lake)  has  ten,  though 
entitled  by  population  to  thirteen. 

Virginia  has  no  constitutional  restriction  on  representation  but 
in  its  new  constitution  (1902)  accepts  the  statutor}^  apportionment 
of  April  2,  1902,  permits  a  reapportionment  in  1906,  and  orders  one 
in  19 1 2  and  every  tenth  year  thereafter.  An  examination  of  the 
apportionment  of  1902  shows  it  to  be  substantially  in  accord  with 
population.  The  senate  of  forty  is  rightly  apportioned;  in  the 
house  of  one  hundred  members  five  large  districts  are  short  one 
each,  to  make  up  for  a  slight  over-apportionment  to  districts  below 
a  full  ratio.     No  district  however  falls  below  one-half  ratio. 

West  Virginia  fixes  in  its  constitution  the  method  of  computing 
the  house  apportionment  and  grants  each  county  one  delegate. 
The  last  apportionment  is  on  the  basis  of  population;  for  of  the 
fifty  counties  none  fall  below  the  half  ratio,  though  twelve  are  be- 
tween the  half  and  the  full  ratio. 

Wyoming  requires  by  constitution  that  each  county  shall  have 
at  least  one  in  each  house.  In  the  apportionment  of  1901  this 
results  in  the  gain  to  the  counties  of  small  population  of  one  in  the 
senate  (twenty-three  members),  and  three  in  the  house  (fifty 
members),  and  the  consequent  loss  of  these  to  the  more  thickly 
settled  counties. 

III.  In  six  of  the  states  the  restrictions  placed  on  popular 
representation  are  especially  severe.  These  will  now  be  considered 
in  turn. 

Delaware. — The  apportionment  to  the  three  counties  of  Dela- 
ware is  fixed  by  constitution  and  no  provision  made  for  alteration. 
In  the  senate,  Newcastle,  Sussex,  and  Kent  counties  are  assigned 
seven,  five,  five  members,  but  are  by  population  entitled  to  ten, 
four,  and  three  members  respectively.  In  the  house  they  are 
assigned  fifteen,  ten,  and  ten,  but  should  have  twent3"-one,  eight, 
and  six  respectively.  In  Newcastle  county  the  City  of  Wilmington 
is  assigned  two  and  fv\e  members  in  the  houses,  but  should  have 
seven  and  fourteen  members  by  population.  This  injustice  in 
apportionment  will  grow  worse  rather  than  better,  owing  to  the 
rigidity  of  the  constitutional  provisions. 

Georgia  fixes  in  constitution  its  forty-four  senatorial  districts, 
but  allows  a  readjustment  after  each  federal  census.     In  the  appor- 


^6  The  Annals  of  the  American  Academy 

tionment  of  1904  there  are  four  districts  which  by  population  should 
have  nine  members  instead  of  four.  This  is  necessitated  by  the 
fact  that  twenty-seven  districts  fall  below  the  ratio  and  two  of 
these  even  below  the  half  ratio. 

As  for  the  house  of  one  hundred  seventy-five  members*  the 
constitution  divides  the  one  hundred  thirty-seven  counties"  into 
three  classes,  and  orders  an  assignment  of  three  members  each  to 
the  six  largest  counties;  two  each  to  the  twenty -six  counties  next 
in  size;  and  one  each  to  the  one  hundred  thirteen  remaining. 
Had  the  apportionment  of  1904  been  in  proportion  to  population, 
the  six  largest  counties  would  have  had  twenty-five  members 
instead  of  eighteen;  the  twenty -six  counties  have  their  proper 
assignment ;  but  of  the  counties  in  the  third  class  three  should  have 
had  two  each,  fourteen  fall  below  even  the  one-half  ratio,  and  forty- 
three  others  range  between  the  half  and  the  full  ratio. 

Kansas  provides  that  each  county  shall  have  at  least  one  in  the 
house,  provided  it  has  at  least  two  hundred  fifty  voters.  As  its 
population  ratio  for  the  house  is  11,764,  the  smaller  districts  have 
too  great  a  representation.  In  fact  there  are  twenty-eight  districts 
having  less  than  one-half  the  ratio ;  these  properly  should  have  six 
members  instead  of  twenty-eight.  Hence  by  necessity  the  larger 
districts  have  too  few  representatives.  The  nineteen  large  districts, 
to  which  twenty-eight  members  are  assigned,  are  really  entitled  to 
fifty-one.  This  well  illustrates  the  evil  of  inserting  an  apparently 
simple  condition  without  proper  consideration  of  consequences. 

Maryland  in  its  constitution,  as  amended,  provides  that  each 
county  shall  have  in  the  senate  one  member,  and  Baltimore  city 
four,  making  a  total  of  twenty-seven  members,  since  there  are 
twenty-three  counties  and  the  city  district.  This  is  far  from  being 
in  accord  with  population,  as  nineteen  of  the  twenty-three  counties 
are  below  ratio,  and  ten  of  these  even  below  the  half  ratio.  In  con- 
sequence the  more  populous  districts  suffer;  Baltimore  county 
should  have  two,  and  the  city  is  entitled  to  twelve, 

The  same  objection  lies  against  the  apportionment  of  the  house 
of  one  hundred  and  one  members.  A  ratio  is  carefully  defined  in 
the  constitution  which  discriminates  in  favor  of  the  smaller  dis- 
tricts and  fixes  a  maximum  for  the  city  of  Baltimore.     The  effect 

'Since  raised  to  183  by  amendment. 
•Now  14s. 


Our  State  Constitutions  yy 

of  this  is  that  twenty-two  counties  which  should  have  fifty  mem- 
bers have  seventy-one,  the  county  of  Baltimore  has  six  but  should 
have  eight,  and  the  city  of  Baltimore  has  twenty-four  but  should 
have  been  assigned  by  population  forty -three  members. 

Missouri  by  constitution  provides  that  its  senate  be  appor- 
tioned among  districts  equal  in  population  and  reapportionment 
made  after  each  federal  census. 

In  the  case  of  the  house  however  each  county  must  have  at 
least  one,  and  a  ratio  is  defined  which  discriminates  in  favor  of  the 
counties  of  small  population.  Of  the  one  hundred  fifteen  counties 
seventy-six  fall  below  a  ratio  based  on  population,  and  of  these 
twelve  are  below  the  half  ratio.  The  gain  in  representation  to 
these  must  be  made  up  of  course  by  a  corresponding  loss  to  the 
counties  of  larger  population.  Six  of  these,  to  which  by  the  appor- 
tionment of  1901  sixteen  members  were  assigned,  should  have  had 
by  population  twenty-five,  and  the  city  of  St.  Louis,  to  which  six- 
teen were  assigned,  should  have  had  twenty-six  members. 

New  Jersey  by  constitution  makes  up  its  senate  by  one  delegate 
from  each  of  twenty-one  counties.  This  of  course  produces  great 
inequality.  Fifteen  of  the  counties  are  below  the  ratio  and  eight 
of  these  below  the  half  ratio.  This  necessitates  under-representa- 
tion  in  the  other  counties.  Essex  and  Hudson  counties  should 
have  by  population  four  members  each  in  the  senate  and  Passaic 
county  two. 

The  constitution  also  provides  that  each  county  have  at  least 
one  in  the  house,  but  as  one  county  only  (Cape  May)  falls  below 
the  one-half  ratio,  the  requirement  involves  no-real  limitation  on 
popular  representation. 

IV.  The  fourth  set  of  constitutions  consists  of  those  of  the 
New  England  states,  omitting  that  of  Massachusetts,  which  by 
constitution  provides  for  a  reapportionment  after  each  state  census, 
on  the  basis  of  voting  population,  and  without  qualifications  or 
restrictions.  As  these  five  states  emphasize  on  the  whole  the  town 
as  the  basis  of  representation  rather  than  the  county,  their  system 
of  representation  will  be  presented  from  both  standpoints,  first, 
from  the  county  basis  for  the  sake  of  comparison,  and  then  from 
the  town  system  of  representation. 

Connecticut  by  constitution  divides  the  membership  of  thirty- 
five  in  the  senate  among  the  counties  in  proportion  to  population, 


78  The  Annals  of  the  American  Academy 

with  the  proviso  that  each  county  have  at  least  one.  The  assign- 
ment in  1906  is  sufificiently  accurate.  Each  of  the  eight  counties 
has  a  population  sufficient  to  entitle  it  to  at  least  one;  Litchfield 
county  has  three  but  properly  should  have  two ;  its  gain  is  the  loss 
of  Hartford  county,  which  has  seven  and  is  entitled  to  eight. 

The  house  is  composed  of  two  hundred  fifty-five  members  and 
assignment  is  made  on  the  town  basis.  If,  however,  the  representa- 
tion by  counties  be  considered,  five^  counties,  to  which  one  hundred 
thirty-nine  members  are  assigned,  should  properly  have  but  seventy- 
three,  and  three  ^counties,  assigned  one  hundred  sixteen  members, 
should  have  by  population  one  hundred  eighty-two. 

Maine  by  constitution  provides  that  its  senate  of  thirty-one 
members  be  apportioned  among  the  counties  in  proportion  to 
census  population.  The  apportionment  in  1906  is  in  strict  accord 
with  this  provision. 

The  constitution  also  provides  for  a  division  of  the  one  hun- 
dred fifty-one  members  of  the  house  among  the  towns  on  the  basis 
of  census  population,  but  adds  a  discriminating  ratio.  This  will 
be  explained  more  fully  later;  but  so  far  as  the  house  apportion- 
ment by  counties  is  concerned,  it  is  exactly  based  on  population. 

New  Hampshire. — The  constitution  of  this  state  is  unique  in 
providing  that  the  senate  of  twenty-four  members  be  apportioned 
one  each  to  twenty -four  districts,  equal  in  respect  to  the  propor- 
tion of  direct  taxes  paid  by  the  said  districts.  If  the  districts  as 
set  in  1905  be  considered  as  the  counties,  and  their  population 
ascertained,  the  result  shows  that  eleven  fall  below  the  ratio, 
though  none  below  one-half  the  ratio.  By  population  the  twelve 
smaller  districts  should  have  nine  members  instead  of  twelve,  and 
the  twelve  larger  districts  should  have  fifteen. 

The  house  ratio  is  fixed  by  constitution  and  is  on  a  town  basis. 
Disregarding  this  for  the  present,  and  considering  the  ten  counties 
of  the  state  from  the  standpoint  of  census  population,  it  may  be 
seen  that  four  of  these  should  lose  fourteen  members  and  these 
should  be  added  to  three  of  the  remaining  counties.  The  greatest 
difference  is  found  in  the  over -representation  of  Grafton  county 
by  eight  members,  and  the  under-representation  of  Hillsboro 
county  by  nine  members. 

Rhode  /5/a«ci  by  constitution  apportions  its  thirty-eight  senators 

^New  London,  Windham,  Litchfield,  Middlesex,  Tolland. 
•Hartford,  New  Haven,  Fairfield, 


Our  State  Constitutions  79 

one  to  each  town  or  city.  By  county*  population  this  means  that 
the  four  counties  of  smaller  population  have  thirteen  senators  in 
excess  of  their  proportion,  and  that  Providence  county,  the  only 
other  county,  loses  that  same  number  from  its  proportion. 

Constitutional  provisions  in  regard  to  the  house  require  that 
each  town  shall  have  at  least  one,  and  no  city  more  than  one-sixth 
of  the  whole  number  (72).  From  the  standpoint  of  county  popula- 
tion the  four  smaller  counties  should  lose  twelve  members,  and 
Providence  county  should  gain  them. 

Vermont  requires  that  its  senate  of  thirty  members  be  appor- 
tioned among  the  counties  in  proportion  to  census  population,  but 
that  each  county  must  have  at  least  one.  The  county  of  Grand 
Isle  has  less  than  one-half  the  ratio,  and  the  member  assigned  to 
this  county  is  lost  by  Franklin  county,  which  has  two  members 
instead  of  three. 

Representation  in  the  house  of  two  hundred  forty-six  members 
is  by  towns  and  will  be  presented  later.  If  the  population  of  the 
fourteen  counties  however  be  considered,  it  may  be  seen  that  nine 
of  these  have  twenty-eight  members  assigned  in  excess  of  their 
population,  and  this  number  taken  from  four  of  the  large  counties. 

THE  NEW  ENGLAND  STATES. 

Of  these  six  states  Massachusetts  only  apportions  the  mem- 
bership of  both  houses  on  the  basis  of  population.  The  repre- 
sentation in  the  lower  house  is  assigned  to  the  counties,  and  then 
reapportioned  among  the  towns  in  proportion  to  their  respective 
voting  population.  Maine  follows  the  same  procedure  but  specifies 
a  ratio  which  gives  the  rural  towns  an  advantage  over  urban  centers. 
Seven  counties  only  contain  such  urban  centers,  and  these,  eleven 
in  number,  are  assigned  thirty  members,  though  by  population  en- 
titled to  thirty-nine.  These  nine  members  are  gained  by  the  rural 
towns  in  the  same  counties.  Portland,  the  largest  city  in  the  state,  is 
naturally  the  heaviest  loser,  having  seven  members  though  entitled 
to  eleven. 

New  Hampshire  apportions  the  membership  of  the  lower  house 
directly  to  the  towns,  on  the  basis  of  population,  but  by  a  set  ratio 
which  discriminates  somewhat  in  favor  of  the  county  towns.  The 
one-member  districts,  each  composed  of  one  or  more  towns,  number 
one  hundred  sixty-eight  but  by  population  should  have  but  one 

•The  county  in  Rhode  Island  is  merely  a  judical  district  and  has  no  adminstrative  unity. 


8o  The  Annals  of  the  American  Academy 

hundred  forty-six  members.  This  gain  of  twenty-two  is  lost  by 
the  forty-one  towns  or  cities  having  more  than  one  member  each. 
Unitedly  they  have  two  hundred  twenty-three  but  should  have 
two  hundred  forty-five.  Manchester,  the  largest  city,  shows  the 
ratio  of  loss.  It  has  fort}-nine  members  but  by  population  is 
entitled  to  fifty-four. 

The  other  three  New  England  states  are  by  no  means  so  equit- 
able in  their  representation.  In  theory  they  seek  to  make  one 
house  popular  in  basis,  and  the  other  representative  of  the  towns 
irrespective  of  population. 

Vermojit,  for  example,  assigns  the  membership  of  the  senate 
to  the  counties  on  the  basis  of  population,  but  makes  up  its  lower 
house  of  two  hundred  forty-six  members  by  one  delegate  from  each 
town  or  city  in  the  state.  Seventy-five  of  these  towns  have  a 
population  each  lower  than  one-half  the  ratio,  and,  if  properly 
represented,  would  have  but  twenty-three  members.  There  are 
one  hundred  thirty-seven  towns  having  each  a  population  between 
one-half  and  one  and  a  half  ratios.  These  have  twenty-three 
members  in  excess  of  their  population.  There  are  thirty-four 
towns  and  cities  having  each  a  population  over  one  and  a  half 
ratios,  to  which  should  be  assigned  on  a  population  basis  one  hun- 
dred nine  members.  The  four  largest  cities  combined  should  by 
population  have  thirty-three  members  instead  of  four.  Contrast 
with  these  the  four  smallest  towns,  which  have  a  combined  popula- 
tion of  two  hundred  sixty  persons;  these  are  presumably  fully 
represented  by  their  four  delegates  in  the  house ! 

Connecticut  likewise  assigns  its  membership  in  the  senate 
on  the  basis  of  population,  and  divides  the  two  hundred  fifty-five 
members  of  the  house  among  the  towns  or  cities,  assigning  one  or 
two  members  to  each.  There  are  eighty-one  single-member  dis- 
tricts, and  eighty-seven  having  two  members  each.  This  difference 
in  representation  is  historic,  and  not  based  on  population.  Of  these 
one  hundred  sixty-eight  districts,  seventy -seVen  are  towns  having 
each  a  population  less  than  one-half  the  ratio.  They  have  one 
hundred  members  but  should  have  by  population  twenty.  Twen- 
ty-three of  the  seventy-seven  towns  are  two-member  districts,  and 
in  place  of  forty-six  members  should  have  by  population  seven 
members.  There  are  fifty-seven  towns  each  having  a  population 
between  a  half  ratio  and  a  ratio  and  a  half.     These  have  eighty- 


Our  State  Constitutions  8i 

seven  members,  though  by  population  entitled  to  forty-seven. 
Thirty  of  these  districts  have  two  members  each ;  their  representa- 
tion by  population  should  be  twenty-five.  The  thirty-four  largest 
towns  or  cities  are  all  double-member  districts  and  hence  have  a 
combined  representation  of  sixty-eight  members.  By  population 
they  are  entitled  to  one  hundred  eighty-eight  members.  The  injus- 
tice of  this  may  easily  be  seen  by  noting  the  extremes.  The  four 
smallest  towns  have  a  combined  population  of  1,567,  less  than  one 
half  ratio,  yet  have  five  members.  The  four  largest  cities  have  a 
combined  population  of  309,982  and  should  have  eighty-seven 
members,  instead  of  the  eight  assigned  by  constitution. 

Rhode  Island  uses  its  house  as  the  apparently  popular  body, 
and  makes  up  its  senate  by  one  member  from  each  town  or  city. 
The  constitution  however  requires  that  each  town  must  have  at 
least  one  member  in  the  house  of  seventy -two  members,  and  that 
no  city  shall  have  more  than  one-sixth  of  the  total  membership. 
There  are  thirty-eight  towns  and  cities  in  the  state,  and  seventeen 
of  these  have  each  a  population  less  than  one-half  the  house  ratio. 
Instead  of  seventeen  members  these  towns  properly  should  have 
four.  Twelve  towns  have  each  a  population  between  a  half  ratio 
and  a  ratio  and  a  half.  Fourteen  members  are  assigned  to  these 
(1906),  instead  of  eleven,  their  proper  representation  by  population. 
There  are  four  large  towns  and  five  cities  to  which  properly  fifty- 
seven  members  should  be  allotted,  but,  owing  to  the  limitations 
already  mentioned,  forty-one  members  only  are  assigned.  This 
loss  really  all  falls  on  the  city  of  Providence,  which  by  constitution 
is  limited  to  twelve  members  though  its  population  entitles  it  to 
thirty. 

If  the  census  of  1905  were  used,  the  three  classes  of  towns  and 
cities  above  specified  would  be  as  follows : — Nineteen  towns  having 
nineteen  members,  should  have  five;  eleven  towns  having  fourteen 
members  should  have  eleven ;  and  three  towns  and  five  cities  have 
thirty -nine  members  but  should  have  fifty -six.  Providence  as 
before  should  have  thirty  members  instead  of  twelve. 

The  Senate  is  made  up  of  a  member  from  each  of  the  thirty - 
eight  towns  and  cities.  Twenty-five  of  these  fall  below  the  half 
ratio  and  should  have  by  population  five  members  only.  Seven 
towns  have  populations  between  the  half  ratio  and  a  ratio  and  a 
half,  and  should  have  six  instead  of  seven  members.     The  six 


82  The  Annals  of  the  American  Academy 

remaining  districts  of  large  population  should  have  twenty-seven 
senators  in  place  of  the  six  allotted  by  constitution.  If  the  census 
of  1905  were  used  the  classification  would  be  exactly  the  same. 

Using  the  census  of  1905,  the  five  cities  and  two  towns  having 
each  a  population  over  15,000,  unitedly  have  a  population  of 
361,040,  or  seventy-five  per  cent  of  the  whole.  They  should  have 
fifty-four  of  the  seventy-two  house  members  and  twenty -nine  of 
the  thirty-eight  senators.  In  fact  they  have  thirty-seven  members 
in  the  house,  a  bare  majority,  and  seven  in  the  senate,  or  eighteen 
per  cent  of  the  whole.  By  contrast  the  seven  smallest  towns  have 
a  combined  population  of  7,224,  or  one  and  one-half  per  cent  of  the 
whole,  and  yet  are  represented  by  seven  members  in  each  house. 
The  city  of  Providence  which  by  constitution  is  restricted  to  one 
member  in  the  senate  and  twelve  in  the  house,  should  by  popula- 
tion have  sixteen  in  the  senate  and  thirty  in  the  house. 

By  taking  into  account  the  towns  of  smallest  population,  the 
majority  in  each  house  is  theoretically  controlled  by  eight  per  cent 
of  the  population  in  the  senate  and  thirty  per  cent  in  the  house. 
If  both  houses  met  in  joint  session  for  the  purpose  of  electing  a 
federal  senator,  twenty-eight  small  towns,  containing  less  than 
sixteen  per  cent  of  the  population  of  the  state,  could  cast  a  majority 
vote  for  their  candidate. 

Such  a  system  of  misrepresentation  as  this,  and  those  of 
Connecticut  and  Vermont,  cannot  be  justified  by  any  theory  of 
democracy,  and  are  entirely  at  variance  with  the  great  American 
principle  of  popular  sovereignty.  These  three,  and  the  six  states 
of  class  III,  are,  however,  glaring  exceptions  to  the  general  rule. 
The  other  thirty-six  states  are  practically  democratic  in  their  rep- 
resentation, and  the  new  State  of  Oklahoma  will  unquestionably 
adopt  the  same  policy. 


CHAPTER  XII. 
Constitutions  of  the  New  England  States. 

It  becomes  obvious  that  in  a  comparative  study  of  state  con- 
stitutions, the  set  in  force  in  New  England  should  be  studied  sepa- 
rately, because  of  the  numerous  peculiarities  found  in  these 
ancient  constitutions.  The  latest  of  these  has  served  two  genera- 
tions, and  the  oldest  was  written  in  the  midst  of  the  Revolution.* 
Though  amended  from  time  to  time,  they  have  been  amended  con- 
servatively and  still  retain  many  features  long  since  outgrown  by 
the  other  states ;  with  all  their  amendments  they  rank  as  the  shortest 
of  our  state  constitutions,  averaging  about  eight  thousand  words, 
or  one-half  the  length  of  other  state  constitutions. 

Four  of  these  place  amendments  after  the  main  text  and 
thereby  compel  a  most  perplexing  tangle  of  cross-references  and 
obsolete  provisions.  New  Hampshire  incorporates  its  amend- 
ments into  the  constitution,  and  Maine  did  so  in  1875,  but  adds 
later  amendments  as  supplements.  Four  different  methods  are 
used  to  designate  the  numbering  of  articles  and  sections.  Three  of 
the  constitutions  include  a  short  preamble.  New  Hampshire  and 
Vermont  omit  it  entirely,  but  Massachusetts  has  one  long  enough 
(two  hundred  and  sixty-three  words)  to  atone  for  their  short- 
comings. Five  of  the  states  preface  their  constitutions  with  a 
Declaration  of  Rights,  var>'ing  from  twenty-one  to  thirty  sections 
each,  but  New  Hampshire  calls  it  a  Bill  of  Rights,  and  lengthens  it 
to  thirty-eight  sections.  The  religious  features  of  these  provisions 
present  marked  peculiarities  but  they  have  already  been  presented 
in  Chapter  X.  All  of  the  states  emphasize  vigorously  the  town  as 
the  basis  of  administration  and  government,  and  pay  relatively 
small  attention  to  the  county  or  the  city.     The  county  in  Rhode 

'Massachusetts.  1780,  revised  through  convention  in  1820.  and  eighteen  sets  of  amendments 
added  smce  that  time  up  to  1894.  thirty-six  articles  in  all.  New  Hampshire,  1784.  revised 
m  1792.  and  amended  1851.  1876.  18S9,  1903.  Vermont.  1793,  and  twenty-six  articles  of 
amendment  added  through  board  of  censors  and  convention.  1828.  1836  1850  1870  and 
two  additional  articles  added  ,883  through  legislative  action  and  referendum.  Connecticut. 
1818  and  thirty-three  amendments  added  up  to  1906.  Maine,  1819.  up  to  1875  twenty-one 
amendments  were  added  and  in  that  year  were  incorporated  into  the  main  text.  Nine  amend- 
ments have  beenadded  since  that  date.  Rhode  Island,  1842,  and  nine  sets  of  amendments, 
twelve  in  all,  dating  from  1854  to  1903. 

(83) 


84  The  Annals  of  the  American  Academy 

Island  is  a  mere  judicial  district,  but  it  plays  an  increasingly- 
important  part  in  the  other  five  states.  This  system  of  admin- 
istrative districts  is  in  marked  contrast  to  that  of  the  other  states 
in  the  Union,  where  the  count}'  and  city  receive  special  attention, 
and  where  the  town  exists,  if  at  all,  in  the  form  of  a  township. 

The  six  constitutions  formally  separate  the  three  departments 
of  government  but  the  separation  is  not  made  in  fact.  In  each 
state  the  legislature  is  given  the  mass  of  power  and  largely  controls 
administration.  In  Maine  the  governor  must  be  a  native-born 
citizen  of  the  United  States.  Four  of  the  states  elect  lieutenant- 
governors.  In  Vermont  and  Connecticut  he  presides  over  the 
senate ;  in  Rhode  Island  only  in  the  absence  of  the  governor,  who 
by  constitution  has  that  privilege;  in  Massachusetts  he  presides 
over  the  council  in  the  absence  of  the  governor.  The  senate 
elects  its  own  presiding  officer  in  Massachusetts,  Maine  and  New 
Hampshire.  Three  states  use  the  old-fashioned  executive  council, 
reducing  thereby  the  governor's  powers  proportionately.  New 
Hampshire  has  a  council  of  five,  and  Massachusetts  of  eight, 
elected  from  districts ;  Maine  has  a  council  of  seven  chosen  by  joint 
ballot  of  the  legislature.  The  council  as  a  rule  shares  with  the 
governor  his  power  in  nomination,  appointment,  and  pardon;  in 
New  Hampshire  and  Massachusetts  it  shares  also  his  control  over 
expenditure  through  approval  or  disapproval  of  disbursements 
from  the  treasury.  Connecticut,  Rhode  Island  and  Vermont  pro- 
vide for  the  popular  election  of  three  of  their  heads  of  administra- 
tion; Massachusetts  elects  four,  Maine  and  New  Hampshire  vest 
the  appointing  power  in  the  assembly.  In  Massachusetts  the 
treasurer  may  not  hold  office  for  a  longer  period  than  five  years ; 
in  Maine,  six  years.  The  term  of  executive  and  administrative 
officers  is  two  years  except  in  Rhode  Island  and  Massachusetts, 
where  elections  are  annual.  In  New  Hampshire,  a  majority,  not 
a  plurality,  vote  is  required  in  the  election  of  governor,  councillors, 
and  senators.  This  ancient  requirement  has  disappeared  from 
the  other  New  England  constitutions.  The  chief  power  vested  in 
the  governor  is  that  of  veto,  aside  from  slight  supervisory  powers, 
and  the  usual  powers  in  nomination,  appointment,  pardon,  and  war ;' 
Rhode  Island  alone  refuses  the  veto  power  to  its  governor.     Four 

'The  quaint  and  bombastic  phraseology  of  the  Xew  Hampshire  and  Massachusetts  war 
paragraphs  is  especially  noteworthy. 


Our  State  Constitutions  85 

of  the  states  allow  their  governors  five  days  for  consideration  of 
bills,  but  Connecticut  makes  it  three.  The  veto  ma}^  be  over- 
ridden by  a  majority  of  each  house  in  Connecticut  and  Vermont, 
but  a  two-thirds  vote  is  needed  in  the  other  three  states.  If  the 
bill  is  in  the  governor's  hands  when  the  legislature  adjourns,  the 
bill  is  thereby  defeated  in  four  of  the  states,  but  is  considered  as 
passed  in  Maine  unless  returned  during  the  first  three  days  of  the 
next  session.  No  one  of  the  five  constitutions  allows  him  to  veto 
items  of  appropriation  bills,  though  thirty  of  the  other  states  give 
their  governors  this  power. 

The  legislature'  is  elected  and  meets  biennially  except  in 
Rhode  Island  and  Massachusetts  which  have  annual  elections  and 
sessions.  All  the  sessions  begin  in  Januar}^  except  in  Vermont, 
where  the  first  Wednesday  in  October  is  set.  Vermont  and  Maine 
hold  their  state  elections  in  September  but  the  others  in  November. 
There  are  no  constitutional  limitations  on  the  length  of  the  session 
in  any  of  the  states,  but  Rhode  Island  provides  that  there  shall  be 
payment  for  sixty  days  service  only,  at  the  rate  of  five  dollars 
per  day.  Connecticut  and  New  Hampshire  fix  on  a  definite  com- 
pensation for  the  term,  and  the  other  three  states  fix  the  amount 
by  statute.*  The  apportionment  of  the  membership  of  the  several 
legislatures  has  already  been  explained  in  Chapter  XI.  The  sub- 
stance of  this  is  that  Massachusetts  fairly  apportions  representation 
in  both  houses  on  the  basis  of  population ;  Maine  and  New  Hamp- 
shire practically  do  so,  but  make  some  discrimination  against  urban 
centers  in  favor  of  rural  communities.  Vermont  and  Connecticut 
fairly  apportion  the  senate  on  the  basis  of  population,  but  in  the 
house  grossly  discriminate  in  favor  of  rural  towns;  and  Rhode 
Island  discriminates  against  urban  centers  in  both  houses  and 
most  unjustly  so  in  the  case  of  the  senate,  whose  apportionment 
is  the  least  popular  in  basis  of  all  houses  in  the  United  States. 

The  most  noticeable  feature  of  the  New  England  legislatures 
is  the  slight  restriction  placed  on  their  enormous  powers.  Aside 
from  the  veto  there  are  almost  no  regulations  of  procedure,  and 

'In  Connecticut,  Rhode  Island  and  Vermont,  this  body  is  the  general  assembly;  in  Maine, 
the  legislature;  and  in  New  Hampshire  and  Massachusetts  the  general  court.  Massachusetts 
calls  itself  a  Commonwealth,  not  a  State. 

'Connecticut,  three  hundred  dollars;  New  Hampshire,  two  hundred  dollars,  and  forty-five 
dollars  as  a  maximum  for  a  special  session;  Maine,  one  hundred  and  fifty  dollars  for  the  term; 
Massachusetts,  seven  hundred  and  fifty  dollars,  and  Vermont,  three  dollars  per  day. 


86  The  Annals  of  the  American  Academy 

barely  any  restriction  on  special,  local,  or  private  legislation;'  there 
are  a  few  restrictions  on  their  finance  powers,'  and  some  general 
regulation  of  education  and  of  the  militia.  Little  or  nothing  is 
said  in  regard  to  such  important  matters  as  administrative  organ- 
ization and  regulation,  local  and  municipal  government,''  and 
economic  and  corporate  interests  generally.  Maine's  prohibition 
amendment  of  1884  is  the  only  prominent  regulation  of  social 
interests.  Naturally  this  absence  of  restriction  and  regulation 
gives  to  the  legislatures  unusually  large  discretionary  powers  in  all 
forms  of  legislation. 

Suffrage  qualifications  likewise  present  some  peculiar  features 
and  variations.  In  all  the  states  voters  must  be  citizens  of  the 
United  States.  In  Maine  a  residence  in  the  state  of  three  months 
only  is  required ;  in  New  Hampshire  he  must  be  an  inhabitant  of  a 
town;  Rhode  Island  requires  a  two  years'  residence,  except  in  the 
case  of  owners  of  real  estate,  for  whom  one  year  is  sufficient.  The 
other  three  states  make  the  requirement  one  year.  Four  of  the 
states  have  an  educational  requirement ;  in  Connecticut  the  voter 
must  be  able  to  read  English;  in  Massachusetts,  Maine,  and  New 
Hampshire,  he  must  be  able  to  read  English  and  write  his  name. 
Rhode  Island  has  a  requirement  of  a  tax  paid  on  property  assessed 
at  a  value  of  at  least  one  hundred  and  thirty -four  dollars,*  for 
suffrage  in  the  election  of  members  of  city  councils,  or  taxing 
referenda  of  towns  or  cities.  The  chief  restriction  on  suffrage 
naturally  is  in  those  three  states  that  by  discrimination  against 
urban  centers  thereby  virtually  throw  the  political  control 
of  the  states  into  the  hands  of  an  easily  manipulated  rural  oligarchy. 

The  judicial  provisions  of  these  six  constitutions  also  present 
curious  features.  In  general  it  may  be  said  that  the  legislatures 
have,  unlike  those  of  other  states,  very  large  powers  in  defining  the 
organization  and  powers  of  the  several  grades  of  courts.  In  Massa- 
chusetts, Maine  and  New  Hampshire,the  higher  judges  are  appointed 

'Maine  requires  the  legislature  to  provide  by  general  law,  as  far  as  practicable,  for  all 
matters  usually  appertaining  to  special  or  private  legislation. 

'Rhode  Island  and  Maine  fix  a  maximum  for  state  debt;  in  the  former  state  a  referendum 
may  authorize  a  spacial  debt.  Revenue  bills  may  arise  in  either  house  in  Connecticut  and 
Rhode  Island,  but  in  the  house  of  representatives  in  the  other  four  states.  New  Hampshire 
by  late  amendment  (1903)  authorized  a  franchise  and  an  inheritance  tax. 

'Massachusetts  has  a  unique  provision  that  all  by-laws  made  by  municipalities  shall  bs 
subject  at  all  times  to  be  annulled  by  the  General  Court. 

*Thc  old  forty  shilling  franchise. 


Our  State  Constitutions  87 

by  governor  and  council,  in  Vermont  and  Rhode  Island  by  the 
assembly,  and  in  Connecticut  by  the  assembly  on  nomination  of 
the  governor.  The  tenure  of  the  judges  of  the  supreme  court  is 
two  years  in  Vermont,  seven  years  in  Maine,  eight  years  in  Connec- 
ticut, and  during  good  behavior  in  the  other  three  states.  A  sev- 
enty-year age  limit  is  fixed  in  Vermont  and  New  Hampshire.  In 
Rhode  Island,  on  request  of  the  governor  or  either  house,  the 
supreme  court  must  give  opinions  on  important  questions  of  law. 
In  Massachusetts  and  New  Hampshire,  in  addition  to  the  two 
houses,  the  governor  and  council,  and  in  Maine  the  governor  or 
council,  have  the  same  privilege,  and  the  phrase  "and  on  solemn 
occasions"  is  added  to  the  conditions  under  which  advice  may  be  de- 
manded. Among  minor  judicial  officers  it  may  be  noted  that  Rhode 
Island  alone  of  all  the  states  in  the  Union  elects  its  sheriffs 
through  the  assembly  instead  of  by  popular  vote.  The  other  New 
England  constitutions  expressly  require  that  they  be  elected  by 
the  people. 

The  amending  articles  of  New  England  constitutions  contain 
several  marked  peculiarities.  Vermont,  Connecticut,  Rhode 
Island,  and  Massachusetts,  make  no  mention  whatsoever  of  the 
constitutional  convention,  and  must  convoke  it,  if  at  all,  vtnder 
general  legislative  powers  inherent  in  their  state  sovereignty. 
New  Hampshire  uses  a  convention  for  purposes  of  amendment, 
the  power  of  amendment  not  being  vested  in  the  legislature.  .By 
constitution  the  several  towns  of  the  state  every  seven  years  must 
vote  on  the  question  whether  or  not  a  convention  shall  be  called. 
If  an  affirmative  vote  is  cast  the  membership  is  made  up  on  the 
basis  of  the  general  court,  and  the  results  of  the  labors  of  this 
convention  must  be  submitted  as  separate  amendments  to  referen- 
dum vote  and  must  be  approved  by  a  majority  of  two-thirds. 
These  restrictions  are  so  severe  that  few  amendments  have  been  or 
can  be  made  to  the  constitution.  Maine  authorizes  its  legislature 
to  convoke,  without  a  referendum,  a  convention  by  a  two-thirds 
vote  of  each  house,  but  this  power,  given  by  amendment  in  1875, 
has  not  yet  been  exercised.  Amendments  may  be  initiated  by 
the  legislature  through  a  two-thirds  vote  of  each  house,  and  when 
submitted  to  referendum  vote,  must  be  approved  by  a  majority 
of  those  voting  thereon.  In  1875  the  legislature  authorized  the 
governor  to  appoint  a  commission  of  ten  persons  to  report  to  the 


88  The  Annals  of  the  American  Academy 

legislature  such  amendments  as  seemed  necessary.  Nine  of  the 
seventeen  amendments  submitted  by  this  commission  were 
approved  by  the  legislature,  referred  to  the  people,  and  adopted. 
This  is  one  of  the  few  instances  of  the  use  of  a  constituent  com- 
mission. 

The  legislatvire  of  Rhode  Island  in  1897  tried  the  commission 
plan  by  authorizing  the  governor  to  appoint  a  body  of  fifteen 
persons  to  report  to  the  legislature  a  revision  of  the  constitution. 
The  commission  was  seriously  handicapped  by  the  knowledge 
that  its  work  must  satisfy  the  demands  of  two  successive  legis- 
latures. It  succeeded  in  this  but  failed  to  satisfy  the  people,  who 
voted  down  the  revision  in  November,  1898.  This  result  was  far 
from  satisfactory  to  the  party  in  power,  which  had  the  revision 
repassed  with  a  few  verbal  changes  and  submitted  to  referjendum  in 
June,  1899.  It  was  again  rejected  by  a  larger  adverse  vote  and 
thus  ended  the  second  of  the  two  New  England  experiments  of 
revision   through   commissions. 

Omitting  New  Hampshire  and  Maine,  the  four  remaining 
states  amend  through  the  action  of  two  assemblies  but  with  curi- 
ous differences.  In  Vermont,  at  the  end  of  every  decade,  dating 
from  1880,  the  senate  (which  represents  population)  by  a  two- 
thirds  vote  may  submit  amendments  to  the  house  (which  repre- 
sents the  towns) ;  if  this  approves  by  a  majority  vote,the  amend- 
ments are  referred  to  the  next  assembly,  a  majority  vote  of  each 
house  must  then  approve ;  this  is  followed  by  a  referendum,  and 
amendments  must  be  approved  by  a  majority  of  those  voting 
thereon.  Massachusetts  allows  amendments  at  any  time  but 
requires  a  majority  of  the  senate  and  two-thirds  of  the  house 
of  the  initiating  general  court,  and  a  similar  majority  of  each 
house  of  the  next  general  court,  followed  by  a  referendum  vote, 
in  which  a  majority  of  those  voting  thereon,  approves.  Rhode 
Island  requires  the  action  of  two  assemblies,  a  majority  of  each 
house  approving  and  a  referendum;  but  requires  approval  by 
popular  vote  to  be  by  a  three-fifths  vote.  Connecticut  initiates 
amendments  by  a  majority  vote  of  the  house  only;®  these  are 
referred  to  the  next  Assembly,  and  must  be  approved  by  a  two- 
thirds  vote  of  each  house,  and  then  on  referendum  by  a  majority 
vote  of   the    electors.     Connecticut,  under   the   stress    of    urgent 

•This  body  represents  the  towns,  not  the  population. 


Our  State  Constitutions  89 

demands  for  constitutional  reform  through  a  convention,  called 
such  a  body  in  1901  under  the  general  legislative  power  vested  in 
its  assembly.  The  dominant  political  interests  of  the  state, 
however,  placed  certain  limitations  on  the  convention's  power  of 
revision,  and  made  assurance  doubly  sure  by  making  up  the  mem- 
bership of  the  convention  by  one  delegate  from  each  town,  irrespec- 
tive of  population.  The  result  was  a  revision  unsatisfactory  to 
all  parties  concerned,  and  its  consequent  rejection  in  1902  by  refer- 
endum vote.  The  house  in  1905  submitted  a  revised  constitution 
as  an  amendment.  This  made  no  material  change,  merely  incor- 
porating the  amendments  into  the  body  of  the  constitution,  and 
increasing  the  pay  of  assemblymen  from  three  hundred  to  five 
hundred  dollars.  This  revision  must  be  acted  on  b)^  the  assembly 
of  1907,  and  then  submitted  to  referendum  vote. 

These  amending  articles  largely  explain  the  reason  why  New 
England  constitutions  are  old-fashioned.  The  legislative  systems 
of  Massachusetts  and  Maine  are  popular  in  basis  and  allow  a  fair 
expression  of  public  opinion.  A  retention  of  old-fashioned  features 
in  these  constitutions,  therefore,  implies  a  conservative  policy  and 
an  unwillingness  at  present  to  initiate  any  important  changes.  It 
would  certainly  be  a  public  boon,  however,  if  the  general  court 
of  Massachusetts  would  authorize  the  secretary  of  state  to  omit 
from  the  constitution  its  obsolete  provisions,  and  to  place  amend- 
ments each  under  its  proper  article.  New  Hampshire  though 
popularly  organized  in  its  legislature  is  restricted  in  amendment 
by  its  seven  year  requirement,  its  unwieldy  convention  of  four 
hundred  and  fifteen  members,  and  its  preposterous  requirement  of 
a  referendum  majority  of  two-thirds.  Rhode  Island,  Vermont, 
and  Connecticut  are  not  organized  on  a  popular  basis,  amendments 
must  meet  the  approval  of  a  rural  oligarchy,  pass  an  ordeal  of  two 
assemblies,  and  in  Rhode  Island  must  have  a  majority  on  refer- 
endum of  three-fifths.  Under  such  conditions  urban  enterprise 
in  these  three  states  is  suppressed,  corruption  in  politics  is  encour- 
aged, and  broad  progressive  policies  for  economic  and  social 
development  rendered  impossible. 

The  question  might  well  be  raised  in  these  and  a  few  other 
states  of  the  Union  whether  one  generation  has  a  right  to  bind 
future  generations  by  such  serious  restrictions  on  the  process  of 
amendment.     Certainly  no  irrepealable  provision  would  have  any 


90  The  Annals  of  the  American  Academy 

binding  force  on  posterity,  nor  should  an  amending  article  be  con- 
sidered as  legally  binding  that  practically  nullifies  democratic 
principles  and  hinders  economic  and  political  progress.  Suflficient 
precedent  and  theory  could  readily  be  formulated  to  justify  a 
legislature  which  should  disregard  such  stringent  restrictions, 
and  provide  for  a  system  of  amendment  more  in  accordance  with  a 
government  founded  on  popular  consent. 


INDEX. 


(Tlie   numbers   refer   to   pages). 
Administation,  2,  3,  32-35,  55,  56 

districts  of,  56,  84 

heads  of,  3,  33,  34,  35,  54,  84 

See  also  Salaries;  Supervision. 
Agency,  governmental,  2,  5,  6,  7,  li 
Alabama,  25,  28,  35,  45,  52,  53,  71 
Aliens.     See  Suffrage. 
Amendments,  constitutional,  2,  5,  13;  Chapter  III,  83,  87-90. 

must  be  separate,  20,  87 

process  of,  too  stringent,  6,  17,  56,  87,  89,  90 

system  of,  i,  11,  20 

See  also  Constitutions;  Conventions. 
Apportionment  in  state  legislatures,  44;  Chapter  XI,  85 
Appropriations.     See  Expenditures 

for  sectarian  institutions  forbidden,  23,  64,  65 
Arkansas,  26,  67,  71. 

Assembly,  general.     See  Legislative  Department. 
Assessment,   58 

Ballot,  28,  29 

Baltimore,  76,  77 

Bible,  65 

Bill  of  rights,  8,  14,  21-23,  83 

usual  provisions  of,  21,  22 
Bills,  legislative,  46,  49 

revenue,  45,  47,  86 
Board  of  censors,  17,  18 

Boards  of  administration.     See  Administration. 
Boundaries  of  states,  15 
Bryce,   James,   62 

California,  29,  56,  64 
Censors,  boards  of,  17,  iS 
Census,  Federal,  44,  71 

population.     See  Chapter  XI. 
Centralization  of  administration.     Sec  .Idminislralion. 
Charity,  60,  68 
Checks  and  balances,  30 

(91) 


92  Index 

Christian,  68 

Citizen,  native-born,  30 

Citizenship,  7,  25.  30,  and  sec  Siiffnigc. 

City,  the,  10,  56,  70,  85,  86,  89 

Civil  service  rnles,  35,  54 

Class  rotation.  7,  38,  45 

Codification,  47,  61 

Commissions,  administrative.     See  .■hlininislralioii. 

for  constitutional  revision,  17,  87,  88 

for  statutory  purposes,  61 
Committees,  legislative,  3,  33,  47,  48,  53,  58 
Congress  of  the  United  States,  15,  16,  27,  62 
Connecticut,  8,  43,  77-78,  80-81,  82,  and  sec  Chapter  XII. 
Conscience,  liberty  of.     See  Religious  Provisions. 
Constitution,  national,  i,  8,  14,  16,  23,  24,  31,  50,  62 

the  written,  i,  5,  11 
Constitutions,  state,  Chapter  II,  and  see  Amcndmcnis. 

length  of,  I,  8,  13,  50,  83 

making  of.  Chapter  II 

numbering  of   paragraphs  of,  16,  83 

parts  of,   14 

promulgation  of,  6,  19 

revision  of,  11;  Chapter  III.     See  also  Comuiissions;  Convcniion. 

stages  of  development  of,  2,  11,  34 
Contracts,  irrevocable,  15 
Convention,  the  constitutional,  5,  6,  9,  26,  35,  36,  42,  47,  55,  87,  89 

calling  of,  6.  18,  87 

membership   of,    19,   87,  89 
Corporations,  56-57,  86 
Corruption  in  politics,  29,  2>2>,  60,  89 
Council,  the  executive,  4,  9,  84 

County,  the  8,  10,  27,  44,  45,  56,  83,  and  see  Chapter  XI. 
Court,  contempt  of,  22,  41 

opinions  of  the  supreme,  6,  9,  40,  87 
Courts,  grades  of,  36 

powers  of,  4,  36-37.     See  also  Judicial  Department. 

Debt,  22 

Declaration  of  Independence,  67 

rights.     See  Bill  of  Rights. 
Delaware.  5,  8,  66,  68,  75 

Democracy,  6,  11,  12,  21,  36,  50,  $3-  /O,  71-  82,  90 
Departments  of  government,  15,  and  see  Agencies. 
Desuetude,  noxious,  56 
Discretionary  power.     See  Legislation. 
Distribution  of  powers.     See  Separation. 
Districts.     Sec  Administrative ;  Judicial;  Legislative. 
Dueling,  22,  27,  60 


Index  93 


Education,  59,  86 

Educational  qualifications,  7,  24,  25,  86 

Elections,   19,  23,  Chapter  IV 

times  of,  85 
Electorate,  2,  5,  6,  10,  15,  33,  51 

powers  of  the,  6,  7 
Eminent  domain,  22,  57,  59 
Enacting  clause,  14 
English  system,  the,  54,  63 
Equalization,  boards  of,  54,  58 
Executive  council.     See  Council. 

Executive  department,  2,  3,  Chapter  V,  50,  and  see  Adminislralioii;  Governor. 
Executive  powers,  3,  30 
Expenditures,  47,  48,  84,  85 

Federal  system.     See  Constitution. 
Field,  David  Dudley,  39 
Finance,  34,  58-59,  86 
Florida,  5,  31,  41,  71 
Franchises,  23,  56,  57,  58,  86 
Frankland,  State  of,  67 
Fundamental  law.     See  Lan'. 

General  court,  43,  85,  86,  89 

Georgia,  38,  41,  75 

God,  denial  of  His  existence,  67 

in  the  constitution,  14,  62,  63,  66-67,  68 
Government,  2,  86,  and  see  Agency. 

defined,  2 

municipal,  26,  56,  86 
Governor,  3,  4,  5,  30,  60,  84 

messages  of  the,  53 

powers  of  the,  31,  34,  58,  84 

term  of  office,  4,  31 

See  also  ll.vccutive. 

Homestead  exemption,  60 

House  of  Representatives,  43,  44,  45 

representation  in.  Chapter  XI.     See  also  Salaries. 
Houston,  Rev.  Samuel,  67 

Idaho,  72 

Impeachment,  40 

Initiative,  6,  51 

Initiative  and  referendum,  7,  21,  42,  51,  and  see  Referendum. 

Interests,  important,  Chapter  IX, 


94  Index 

Iowa,  2,  4,  72 

Irrepealable  provisions,  15,  89 

Jameson,  John  Alexander,  6,  il 

Jefferson,  Thomas,  11 

Judges,  appointment  of,  5,  38,  86,  87 

election  of,  5,  38 

tenure  of,  4,  9,  38,  87 
Judicial  department,  2,  4,  5 ;  Chapter  VI,  50,  86,  87 

decisions,  38,  41 

districts,  4,  36,  38,  40 
Jurors,  religious  qualifications  for,  Gt„  67 
Jury,  7,  22,  39 

the  judge  of  law  and  fact,  39 

Kansas,  66,  76 
Kentucky,  48,  57,  61 

Labor,  59-60 

Land.     See  School  Lands. 

Law,  5,  S3 

fundamental,  i,  5,  11,  12,  13,  22,  42,  55 
Legislation,  discretionary  power  in,  I,  4,  8,  9,  18,  26,  55,  58,  65,  86,  87, 

local,  private,  or  special,  2,  9,  48,  51-54,  86 

through  the  convention,  13,  50 
Legislative  department,  i,  2,  7;  Chapter  VII,  85,  86 

amending  power  of,  5 

limitations  on,  8,  13,  32,  34,  47;  Chapter  VIII 

organization  of,  7,  42-46,  55 

powers  of,  46-49,  50,  51,  84,  85,  86 

See  also  Committees;  Representation. 
Legislative  districts,  6,  8,  16,  45,  and  Chapter  XI 
Legislators,  capacity  of,  i,  9,  13,  14,  ^2,  53,  55 

salaries  of,  46,  55,  85 
Libel,  40 
Lieutenant-Governor,  4,  35,  84 

Maryland,  8,  9,  25,  63,  6y,  76,  yy 

Majority,  5,  18,  19,  20,  84 

Maryland,  8,  9,  25,  63,  67,  76,  yy 

Massachusetts,  4,  12,  35,  43,  68,  yy,  79,  and  see   Chapter   XII. 

Michigan,  2,  14,  17,  64,  65 

Military  service  and  exemption  from,  63,  86 

Minister  of  the  Gospel,  63,  68,  69 

Minnesota,  56,  57 

Miscellaneous  provisions,   14,  16,  60-61,  68-69 


Index  95 

Mississippi,  20,  27,  28,  45,  60,  66,  67,  68,  72 

Missouri,  56,  77 

Montana,  60,  64,  72 

Morals,  regulation  of  .social,  60,  86 

Municipal.     See  Government. 

National.     See  Constitution. 

Nebraska,  19,  58,  65 

New  England  constitutions,  2,  12,  34,  36,  47,  53,  and  Chapter  XII. 

New  England  States,  s,  9,  43,  44,  52,  56,  77-82 

New  Hampshire,  5,  43,  62,  68,  78,  79-80,  and  see  Chapter  XII. 

New  Jersey,  17,  28,  31,  77 

New  York  State,  17,  18,  28,  35,  27,  46,  7i 

New  York  State  Library,  52 

Nomination,  28 

North  Carolina,  4,  31,  67,  72 

North  Dakota,  58,  62 

Northwest  Ordinance,  70 

Oaths  or  affirmations,  60,  67 

Ohio,  19,  46,  7Z 

Oklahoma,  2,  16,  82 

Oligarchy,  70,  86,  89 

Opinions  of  the  supreme  court.     See  Court. 

Ordinance,  northwest,  70 

powers,  9 
Ordinances  of  conventions,   16 

irrevocable,  15 
Oregon,  7,  21,  28,  40,  51,  56 

Pardon,  power  in,  31,  84 

Parties,  political,  19,  27-29,  35 

Passes,  free,  60 

Pennsylvania,  17,  43,  46,  67,  74 

Poll  tax,  26,  27 

Polygamy,  63 

Population,  43,  44,  Chapter  XI,  and  see  Voting. 

Power,  discretionary.     See  Legislation. 

Powers,  war,  30,  31,  84,  and  see  Separation  of;  Sovereign. 

Preamble,  14,  83 

Primaries,  14,  28,  29 

Procedure,  9,  46-49,  85 

Property  exempt  from  taxation,  65 

qualification,  7,  9,  25,  86 
Providence,  the  city  and  county  of,  79,  81,  82 


96  Index 

Provisions,  general.     See  Miscellaneous. 

irrevocable,  15,  89 

obsolete,  9,  56 

religious,  Chapter  X. 
Publication,  19,  54 

Qualifications.     See  Suffrage;  Religious. 
Quorum,  47,  48 

Ratification,  14,  16 

Ratio,  45.     See  Chapter  XI. 

Referendum,  6,  7,  14,  25 

constitutional,  7,  18,  20,  51,  87,.^,  89 

statutory,   7,  51,  86 

See  also  Initiative. 
Registration  of  voters,  26,  27 
Religious  provisions,  Chapter  X. 

intolerance,  62,  67 

liberty,  62-66 

qualifications,  62,  63,  68 

tests,  9,  63,  67 

See  also  Appropriations;  Sectarian 
Representation,  9,  44-45;  Chapter  XI. 
Representatives,  House  of.     See  House. 
Residence  as  requirement,  27,  86 
Revenue  bills,  45,  47,  86 

Revolutionary  period,  i,  2,  3,  7,  11,   17,  19,  24,  33,  35,  36,  50,  83 
Rhode  Island,  4,  5,  6,  7,  8,  13,  25,  31,  33,  37,  63,  79,  81-82,  and  see  Chapter  XII. 
Rights,  6,  23,  63,  66,  and  see  Bill  of  Rights. 
Rotation,  class,  7,  38,  45 
Rotten  borough,  73 
Rural.       See  County;  Toivn. 

Sabbath,  68 

Salaries  of  state  officers,  30,  31,  33,  35,  38,  41 

of  legislators,  46,  55,  85 
Schedule,  14,  16,  40 
School  lands,  59 

funds,  58,  59 
Sectarian  doctrines,  64 

schools,  59,  64,  65 
Sects,  64 
Senate,  4,  34,  40,  43,  44,  45,  84 

of  the  United  States,  31 

representation  in  the.     See  Chapter  XL 
Separation  of  church  and  state,  62 

of  powers,  2,  15,  30,  50,  84 


Index  97 


Session,  annual,  9,  45,  85 

legislative,  7,  45-46 

limits  to,  27,  45,  85 
Sheriffs,  87 

South  Carolina,  20,  25,  60,  67,  68,  74 
South  Dakota,  5,  51,  65 
Sovereign,  legal,  2,  and  see  Convention;  Electorate 

powers,  2,  6 

people,  6,  82 
State  Constitutions.     See  Constitutions. 

sovereignty,  2,  15,  87 
Statutes,  general,  53 

local,  51,  54,  and  see  Legislation. 
Statutorj'  output,  2,  52,  53 
Succession  in  office,  35 
Suffrage,  7,  15,  86,  Chapter  IV. 

alien,  7,  24 

grandfather  clause,  25 

old  soldier  clause,  25 

restrictions  on.  Chapter  IV,  68,  86 

women,  7,  25,  26 

See  also  Educational;  Property;  Religious. 
Supervision  over  administration,  3,  30,  33,  54,  84 

over  judicial,  40 
Supreme  court.     See  Court. 

Tax,  inheritance,  57,  86 

poll,  26,  27 
Taxation,  57-58 

Tendencies,  general.  Chapter  I,  10,  54 
Tennessee,  63,  67 
Territories,   15.   16 
Texas,  16,  37,  57,  60,  67.  74 
Town,  8,  9.  12,  43,  44-  56,  69,  77,  79-82,  85 
Township.  56 
Tribunals  of  conciliation,  40 

Urban.     See  City. 
Utah,  15,  34,  51,  64,  74 

Vermont,  8,  9,  17,  28,  43,  68,  79,  80,  82,  and  see  Chapter   XII. 
Veto,  3,  14,  31-32,  84,  85 

does  not  extend  to  amendments,  21 

of  items  of  appropriation  bills,  3,  32,  85 

of  items  of  any  bill,  4,  32 

procedure  in  the,  3,  4,  85 

time  given  to  the  governor  for  consideration  of,  32,  85 


98  Index 

Virginia,  25,  27,  50,  52,  57,  58,  68,  75 
Vote,  3,  7 

aliens  may,  7,  24 

yea  and  nay,  19,  32,  48 
Voting,  19,  29 

machine,  28 

"majority  of  those — thereon,"  5,  19,  20 

no  religious  tests  for,  63,  68 

population,  44,  71,  yj 

War  powers,  30,  31,  84 

Washington,  56,  58 

West  Virginia,  75 

Wisconsin,  37 

Witnesses,  no  religious  test  for,  63,  67 

Women,  right  of  married,  to  separate  estates,  60 

suffrage,  7,  25,  26 
Wyoming,  58,  64,  75 


UNIVERSITY  OF  ILLINOIS-URBANA 


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